State v. Smith , 178 Conn. App. 715 ( 2017 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
STATE OF CONNECTICUT v. JACQUI SMITH
(AC 38832)
DiPentima, C. J., and Sheldon and Mihalakos, Js.
Syllabus
The defendant, who had been on probation in connection with his conviction
of certain drug related offenses, appealed to this court from the judgment
of the trial court revoking his probation and imposing a sentence of
five years incarceration. The defendant was arraigned on a violation of
probation charge after the police had observed him driving a motor
vehicle while his driver’s license was under suspension in violation of
the applicable statute (§ 14-215 [a]). Thereafter, the defendant moved
to dismiss the probation violation charge on the ground that a hearing
did not occur within 120 days of his arraignment in violation of the
statute (§ 53a-32 [c]) pertaining to violation of probation, which the trial
court denied. Subsequently, the court found, by a preponderance of the
evidence, that the defendant had wilfully violated the terms and condi-
tion of his probation, and that the beneficial aspects and purposes of
probation were no longer being served. In addition to finding that the
defendant had violated his probation by violating § 14-215 (a), the court
also found that he had violated certain other conditions of his probation
regarding reporting his whereabouts to his probation officer. Held:
1. The defendant could not prevail on his claim that, pursuant to § 53a-32
(c), the trial court improperly denied his motion to dismiss the violation
of probation charge because the plain language of § 53a-32 (c) estab-
lishes a mandatory time period, 120 days from the arraignment, in which
the probation violation hearing must occur, and the state failed to estab-
lish good cause for extending that time period; this court previously
has determined that the 120 day limitation of § 53a-32 (c) is advisory
and not jurisdictional in nature, as neither the text of § 53a-32 (c) nor
the legislative history concerning the addition of the 120 day language
to the statute indicated that that time period implicated the subject
matter jurisdiction of the trial court, our Supreme Court also has con-
cluded that the 120 day time limitation was a guideline that was advisory,
and not mandatory, on the trial court, and this court was not at liberty
to disregard the decisions from our Supreme Court or the decisions
from another panel of this court.
2. The evidence was insufficient to prove that the defendant had operated
a motor vehicle while his driver’s license was under suspension in
violation of § 14-215 (a), as the state did not produce any evidence that
the Department of Motor Vehicles had mailed a notice of suspension
to the defendant’s last known address, which is a necessary element
for a violation of that statute; moreover, because the trial court expressly
relied on the violation of § 14-215 (a) in sentencing the defendant to
five years incarceration, the defendant was entitled to a new sentenc-
ing hearing.
Argued October 11—officially released December 19, 2017
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Fairfield, where the court, Devlin, J., denied
the defendant’s motion to dismiss; thereafter, the matter
was tried to the court, Kavanewsky, J.; judgment revok-
ing the defendant’s probation, from which the defen-
dant appealed to this court. Reversed in part; further
proceedings.
Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
Robert J. Scheinblum, senior assistant state’s attor-
ney, with whom, on the brief, were John C. Smriga,
state’s attorney, and C. Robert Satti, Jr., supervisory
assistant state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, C. J. The defendant, Jacqui Smith,
appeals from the judgment of the trial court revoking
his probation and sentencing him to five years incarcer-
ation. The defendant claims that (1) the court improp-
erly denied his motion to dismiss the probation violation
charge on the basis that the hearing did not occur within
120 days of his arraignment in violation of General
Statutes § 53a-32 (c) and (2) the evidence was insuffi-
cient to prove that he had operated a motor vehicle
while his driver’s license was under suspension in viola-
tion of General Statutes § 14-215 (a) and, therefore,
he is entitled to a new sentencing hearing. The state
counters that, pursuant to State v. Kelley, 164 Conn.
App. 232, 137 A.3d 822 (2016), aff’d, 326 Conn. 731, 167
A.3d 961 (2017), the 120 day time frame of § 53a-32 (c)
is directory and, additionally, that the court properly
found good cause for the delay. The state concedes,
however, that there was insufficient evidence for the
court to conclude that the defendant had violated § 14-
215 (a), and, therefore, under these facts and circum-
stances, the defendant is entitled to a new sentencing
hearing. We conclude that the court properly deter-
mined that the 120 day time period of § 53a-32 (c) is a
nonmandatory ‘‘guideline.’’ Further, we agree that a
new sentencing hearing is required. Accordingly, we
affirm in part and reverse in part the judgment of the
trial court.
The following facts and procedural history are neces-
sary for our discussion. The defendant was convicted
of drug related offenses in January, 2013, and sentenced
to ten years incarceration, execution suspended after
three years, and three years of probation. He was
released from custody on April 1, 2015, and first
reported to his probation officer on April 9, 2015. During
this meeting, the probation officer reviewed the condi-
tions of probation with the defendant.
The standard conditions of probation provided, inter
alia, that the defendant was not to violate any criminal
law of the United States or the state of Connecticut,
that he was to report as instructed to the probation
officer and that he was to inform the probation officer
if he was arrested. The specific conditions of probation
required the defendant to complete a mental health
evaluation, to complete a substance abuse evaluation
and treatment, if necessary, to obtain full-time employ-
ment and/or educational/vocational training, to attend
one ‘‘Project Safe Neighborhood Meeting’’ within the
first three months of probation and not to possess
drugs, narcotics or weapons. The defendant signed a
form listing the conditions of his probation.
On June 15, 2015, the state charged the defendant
with violating his probation. See General Statutes § 53a-
32 (a). It alleged that on May 25, 2015, Bridgeport police
officers observed the defendant driving a motor vehicle
and noticed that the occupants were not wearing seat-
belts. After a brief investigation, the officers issued the
defendant a misdemeanor summons for operating a
motor vehicle while his driver’s license was under sus-
pension in violation of § 14-215 (a) and without mini-
mum insurance in violation of General Statutes § 14-
213b. The state also claimed that the defendant had
missed four appointments for an integrated mental
health and substance abuse assessment. The defendant
was arraigned on the violation of probation charge on
June 30, 2015.
On December 16, 2015, the defendant moved to dis-
miss the probation violation charge pursuant to § 53a-
32 (c). Specifically, the defendant argued that he had
‘‘been held on this charge for more than 120 days in
violation of said statute.’’ On December 21, 2015, the
court, Devlin, J., held a hearing on the defendant’s
motion. After hearing from the parties, the court ruled
as follows: ‘‘[A]s I read this statute, it is advisory. This
is a statute which advises the court of the legislature’s
concern. . . . [T]he statute does not provide that the
remedy for not having someone adjudicated on their
violation of probation case is a dismissal of the charge.
It doesn’t provide for that. . . . So, I’m going to deny
this motion to dismiss.’’
The next day, the court, Kavanewsky, J., conducted
a hearing on the probation violation charge. At the con-
clusion of the adjudicatory phase,1 the court found the
following facts. ‘‘The state has established that the
defendant violated the terms and conditions of his pro-
bation in several different respects, including reporting
as the probation officer directed him to, keep the proba-
tion officer advised of his general whereabouts, also
more specific conditions relating to the defendant
obtaining mental health, regarding substance abuse and
regarding attendance at, at least one project safe neigh-
borhood meeting.’’ It further found that the defendant
had been advised of these conditions in April, 2015, but
essentially ‘‘dropped off the radar’’ in May, 2015.
The court also expressly found, on the basis of the
testimony of two police officers, that the defendant had
operated a motor vehicle in violation of § 14-215 (a)
on May 25, 2015. Accordingly, the court found, by a
preponderance of the evidence,2 that the defendant wil-
fully had violated the terms and conditions of his pro-
bation.
During the dispositional phase, the court determined
that the beneficial aspects and purposes of probation
were no longer being served. The court then stated:
‘‘[The defendant] was previously sentenced to ten years,
suspended after three years, with three years’ pro-
bation. The judgment previously entered is reopened.
The sentence is vacated and the defendant is sentenced
. . . to a period of five years to serve . . . .’’ This
appeal followed.
On October 4, 2016, the trial court issued a memoran-
dum of decision further explaining the oral decision
denying the defendant’s motion to dismiss. It concluded
that our decision in State v. Kelley, supra, 164 Conn.
App. 232, was dispositive. Specifically, the court noted
that in Kelley, which had been released after the hearing
and oral decision on the defendant’s motion to dismiss,
we concluded that the 120 day limitation of § 53a-32
(c) is a ‘‘goal’’ and a ‘‘guideline,’’ not a jurisdictional
requirement. Id., 240. Additional facts will be set forth
as necessary.
I
The defendant first claims that the court improperly
denied his motion to dismiss the violation of probation
charge. Specifically, he argues that the plain language
of § 53a-32 (c) establishes a mandatory time period,
120 days from the arraignment, in which the probation
violation hearing must occur. He also contends that the
state failed to establish good cause for extending this
time period. We are not persuaded.
We begin with our standard of review. ‘‘A motion to
dismiss . . . properly attacks the jurisdiction of the
court, essentially asserting that the plaintiff cannot as
a matter of law and fact state a cause of action that
should be heard by the court. . . . [O]ur review of the
trial court’s ultimate legal conclusion and resulting
[denial] of the motion to dismiss will be de novo. . . .
Factual findings underlying the court’s decision, how-
ever, will not be disturbed unless they are clearly erro-
neous. . . . The applicable standard of review for the
denial of a motion to dismiss, therefore, generally turns
on whether the appellant seeks to challenge the legal
conclusions of the trial court or its factual determina-
tions.’’ (Internal quotation marks omitted.) State v.
Pittman, 123 Conn. App. 774, 775, 3 A.3d 137, cert.
denied, 299 Conn. 914, 10 A.3d 530 (2010); see also State
v. Soldi, 92 Conn. App. 849, 852–53, 887 A.2d 436, cert.
denied, 277 Conn. 913, 895 A.2d 792 (2006). The defen-
dant also challenges the court’s interpretation of § 53a-
32 (c), and we consider this question of law under the
plenary standard of review. See, e.g., State v. Smith,
289 Conn. 598, 608, 960 A.2d 993 (2008).
Section 53a-32 (c) provides: ‘‘Upon notification by
the probation officer of the arrest of the defendant or
upon an arrest by warrant as herein provided, the court
shall cause the defendant to be brought before it with-
out unnecessary delay for a hearing on the violation
charges. At such hearing the defendant shall be
informed of the manner in which such defendant is
alleged to have violated the conditions of such defen-
dant’s probation or conditional discharge, shall be
advised by the court that such defendant has the right
to retain counsel and, if indigent, shall be entitled to
the services of the public defender, and shall have the
right to cross-examine witnesses and to present evi-
dence in such defendant’s own behalf. Unless good
cause is shown, a charge of violation of any of the
conditions of probation or conditional discharge shall
be disposed of or scheduled for a hearing not later
than one hundred twenty days after the defendant is
arraigned on such charge.’’ (Emphasis added.)
In State v. Kelley, supra, 164 Conn. App. 239, the
defendant claimed, inter alia, that the 2008 amendment
to § 53a-32 (c) created a jurisdictional requirement that
a probation revocation hearing occur within 120 days
of the arraignment, absent good cause. We rejected that
argument for two reasons. Id. First, we noted that ‘‘[t]he
existence of the ‘good cause’ exception specified in
§ 53a-32 (c) undermines that contention, as subject mat-
ter jurisdiction is a prerequisite to adjudication that
‘cannot be waived by anyone, including [the] court.’
. . . The trial court’s ability to waive the 120 day limita-
tion for good cause cannot be reconciled with that
fundamental precept.’’ (Citation omitted.) Id., 239–40.
Second, we noted the legislative history regarding
the 2008 enactment of the 120 day limitation demon-
strated that it was intended to be ‘‘a goal, rather than a
jurisdictional bar.’’ Id., 240. Specifically, Representative
Michael P. Lawlor ‘‘distinguished the 120 day limitation
from ‘the speedy trial mechanism,’ noting that ‘the
speedy trial is a right . . . . [T]his [120 day limitation]
is not the same thing, this is basically a guideline, [a]
goal being articulated by the Legislature imposed on
the judge really to bring a case to hearing.’ ’’ Id. Lawlor
emphasized that ‘‘[t]here would be no right of the defen-
dant to have a hearing in 120 days under [§ 53a-32 (c)]
. . . . It is advisory on the part of the Legislature
. . . .’’ (Internal quotation marks omitted.) Id., 241. In
response to a question from Representative Arthur J.
O’Neil, Lawlor stated that the only penalty for noncom-
pliance with the 120 day limitation would be questions
that the trial judge would have to face at a future recon-
firmation proceeding before the legislature. Id. Thus,
we concluded ‘‘[t]hat [the] legislative history further
persuades us that the 120 day limitation of § 53a-32 (c)
is not jurisdictional in nature.’’ Id. See also State v.
Brown, Superior Court, judicial district of New Britain,
Docket No. CR-05-0224052-S (July 5, 2012) (court con-
cluded that 120 day period was not a right, but rather
‘‘a guideline,’’ and dismissal not appropriate remedy).
In the present case, the court held the hearing on
December 22, 2015, 175 days after the June 30, 2015
arraignment. The court initially concluded, in its oral
decision, that the 120 day limitation of § 53a-32 (c) was
advisory, and, thus, a violation of that limitation would
not require a dismissal. Following the release of our
decision in State v. Kelley, supra, 164 Conn. App. 232,
the trial court issued a memorandum of decision on
October 4, 2016. In addition to relying on Kelley for the
denial of the motion to dismiss,3 the court also found
good cause for the delay of the hearing.4
On appeal, the defendant argues that the plain lan-
guage of § 53a-32 (c) establishes a mandatory, rather
than a directory,5 rule that the hearing must occur
within 120 days, absent good cause. The defendant, in
essence, urges us to ignore the judicial gloss placed on
§ 53a-32 (c) by both this court and our Supreme Court
in the Kelley decisions. See, e.g., Williams v. Commis-
sion on Human Rights & Opportunities, 257 Conn.
258, 271, 777 A.2d 645 (2001) (Supreme Court consid-
ered ‘‘well established judicial gloss’’ from prior cases
in interpreting statute). Although the specific issue in
State v. Kelley, supra, 164 Conn. App. 240–41, was
whether the 120 day limitation was jurisdictional, we
concluded that the 120 day time period was a ‘‘goal,’’
a ‘‘guideline’’ and ‘‘advisory on the part of the Legisla-
ture . . . .’’ (Internal quotation marks omitted.) Fol-
lowing its granting of certification to appeal, our
Supreme Court agreed, noting the legislative history
that the 120 time period of § 53a-32 (c) was ‘‘advisory
on the court’’ and did not create a right to a hearing
within that time period. (Emphasis omitted; internal
quotation marks omitted.) State v. Kelley, 326 Conn.
731, 740, 167 A.3d 961 (2017). We are not at liberty to
disregard the decisions from our Supreme Court; see
State v. Holley, 174 Conn. App. 488, 495, 167 A.3d 1000,
cert. denied, 327 Conn. 907, 170 A.3d 3 (2017); or the
decisions from another panel of this court. State v.
Jahsim T., 165 Conn. App. 534, 545, 139 A.3d 816 (2016).
Accordingly, we conclude that the trial court properly
denied the defendant’s motion to dismiss.6
II
The defendant next claims that the evidence was
insufficient to prove that he had operated a motor vehi-
cle while his driver’s license was under suspension and,
therefore, that he is entitled to a new sentencing hear-
ing. Specifically, he argues that the state did not produce
any evidence that the Department of Motor Vehicles
had mailed a notice of suspension to his last known
address, a necessary element for a violation of § 14-215
(a).7 The state concedes that this element was not met,
and that resentencing is required in this case. We agree
with the parties.
At the outset, we set forth our standard of review.
‘‘The law governing the standard of proof for a violation
of probation is well settled. . . . [A]ll that is required
in a probation violation proceeding is enough to satisfy
the court within its sound judicial discretion that the
probationer has not met the terms of his probation.
. . . It is also well settled that a trial court may not
find a violation of probation unless it finds that the
predicate facts underlying the violation have been
established by a preponderance of the evidence at the
hearing—that is, the evidence must induce a reasonable
belief that it is more probable than not that the defen-
dant has violated a condition of his or her probation.
. . . In making its factual determination, the trial court
is entitled to draw reasonable and logical inferences
from the evidence. . . . Accordingly, [a] challenge to
the sufficiency of the evidence is based on the court’s
factual findings. The proper standard of review is
whether the court’s findings were clearly erroneous
based on the evidence. . . . A court’s finding of fact
is clearly erroneous and its conclusions drawn from
that finding lack sufficient evidence when there is no
evidence in the record to support [the court’s finding
of fact] . . . or when although there is evidence to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Internal quotation marks
omitted.) State v. Acker, 166 Conn. App. 404, 407, 141
A.3d 938 (2016).
In State v. Valinski, 254 Conn. 107, 130, 756 A.2d
1250 (2000), our Supreme Court stated that a conviction
under § 14-215 (a) requires two elements: ‘‘(1) that the
defendant was operating a motor vehicle; and (2) that
the defendant’s license or operating privileges were
under suspension at the time.’’ (Internal quotation
marks omitted.) The second element, ‘‘suspension by
the commissioner, requires proof of compliance with
General Statutes § 14-111 (a).
‘‘[Section] 14-111 (a) does not require personal ser-
vice of a notice of suspension but provides that a notice
forwarded by bulk certified mail to the address of the
person registered as owner or operator of any motor
vehicle as shown by the records of the commissioner
shall be sufficient notice to such person . . . . The
statute does not require that a defendant actually
receive notice, or that a motor vehicle department
receive a return receipt. Constructive notice by the
motor vehicle department is all that is required. . . .
The requirements of § 14-111 (a) were satisfied by a
showing of competent evidence that notice of the sus-
pension was mailed to the defendant at his last known
address as indicated by the records of the commis-
sioner.’’ (Citation omitted; internal quotation marks
omitted.) State v. Torma, 21 Conn. App. 496, 501, 574
A.2d 828 (1990).
In the present case, the state failed to produce any
evidence that notice of the suspension had been mailed
to the defendant at his last known address. The state
agrees that the absence of such evidence prevents a
finding that the defendant violated § 14-215 (a). The
state further agrees that the defendant is entitled to a
new sentencing hearing because the court expressly
relied on the violation of § 14-215 (a) in sentencing
the defendant to five years incarceration. See State v.
Johnson, 75 Conn. App. 643, 660–61, 817 A.2d 708
(2003).
The judgment is reversed only as to the sentence
imposed and the case is remanded with direction to
resentence the defendant; the judgment is affirmed in
all other respects.
In this opinion the other judges concurred.
1
‘‘Our Supreme Court has recognized that revocation of probation hear-
ings, pursuant to § 53a-32, are comprised of two distinct phases, each with
a distinct purpose. . . . In the evidentiary phase, [a] factual determination
by a trial court as to whether a probationer has violated a condition of
probation must first be made. . . . In the dispositional phase, [i]f a violation
is found, a court must next determine whether probation should be revoked
because the beneficial aspects of probation are no longer being served.’’
(Internal quotation marks omitted.) State v. Altajir, 123 Conn. App. 674,
680–81, 2 A.3d 1024 (2010), aff’d, 303 Conn. 304, 33 A.3d 193 (2012); see
also State v. Preston, 286 Conn. 367, 375–76, 944 A.2d 276 (2008).
2
See State v. Fisher, 121 Conn. App. 335, 345, 995 A.2d 105 (2010) (state
bears burden of proving by fair preponderance of evidence that defendant
violated terms of his probation).
3
Specifically, the court stated: ‘‘Although not decided at the time of the
hearing, the present motion [to dismiss] is governed by the Appellate Court’s
decision in State v. Kelley, [supra], 164 Conn. App. 232 . . . . Kelley is
persuasive authority for the proposition that a violation of the 120 day
limitation does not require dismissal of the [violation of probation] charge.
There is nothing in either the wording of § 53a-32 (c) or in its legislative
history suggesting that dismissal should be the sanction for a failure to
dispose of a [violation of probation] case within 120 days of arrest. To the
contrary, the advisory nature of the time limitation is apparent.’’
4
With respect to the issue of good cause, the court determined that ‘‘the
reason that the defendant’s [violation of probation] was not adjudicated
within 120 days of his arrest was due to an attempt to resolve all of his
pending cases in a comprehensive plea agreement. Such an approach is
usually in the defendant’s interest and would support a good cause reason
to delay resolving the [violation of probation] independently of the other
pending cases.’’
5
See, e.g., State v. Banks, 321 Conn. 821, 848, 146 A.3d 1 (2016) (Rogers,
C. J., concurring) (mandatory statutes must be strictly complied with while
directory statutes provide direction and are of no obligatory force). We also
note that the 120 day time frame of § 53a-32 (c) has been determined to be
discretionary. State v. Flores, Superior Court, judicial district of Fairfield,
Docket No. CR-00-0161287-T (June 18, 2012).
6
We also note that the court’s finding of good cause offers an alternative
path to affirming the denial of the motion to dismiss.
7
General Statutes § 14-215 (a) provides: ‘‘No person to whom an operator’s
license has been refused, or, except as provided in section 14-215a, whose
operator’s license or right to operate a motor vehicle in this state has been
suspended or revoked, shall operate any motor vehicle during the period
of such refusal, suspension or revocation. No person shall operate or cause
to be operated any motor vehicle, the registration of which has been refused,
suspended or revoked, or any motor vehicle, the right to operate which has
been suspended or revoked.’’