State v. Sherrod ( 2015 )

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STATE OF CONNECTICUT v. AL-MALIK SHERROD
(AC 36508)
Beach, Alvord and Bear, Js.
Argued February 3—officially released May 26, 2015
(Appeal from Superior Court, judicial district of
Hartford, Lobo, J.)
Douglas H. Butler, assigned counsel, for the appel-
lant (defendant).
Jonathan M. Sousa, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and Ann Mahoney, senior assistant
state’s attorney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Al-Malik Sherrod,
appeals from the judgment of the trial court revoking
his probation pursuant to General Statutes § 53a-321
and committing him to the custody of the Commissioner
of Correction for the remaining eight years of his origi-
nal sentence. On appeal, the defendant claims that the
trial court lacked sufficient evidence to support its find-
ing of a violation of probation. We affirm the judgment
of the trial court.
The following facts and procedural history are rele-
vant to the defendant’s appeal. On May 31, 2001, the
defendant pleaded guilty pursuant to the Alford doc-
trine2 to the offenses of robbery in the first degree in
violation of General Statutes § 53a-134 (a) (3) and
assault in the first degree in violation of General Stat-
utes § 53a-59 (a) (1), arising out of an incident that
occurred on July 13, 2000. On July 13, 2001, the court,
Solomon, J., sentenced the defendant to twenty years
incarceration, execution suspended after twelve years,
and five years of probation. The conditions of probation,
signed by the defendant on July 3, 2012, included the
special condition of no possession of any weapons.
Additionally, it included an order that he not violate
any criminal law of the United States, this state, or any
other state or territory. It also included an order that
he, while on probation for his felony convictions, not
possess, receive, or transport any firearm. The defen-
dant was released from custody and began serving his
probation on July 30, 2012.
On September 14, 2012, the defendant, who was still
on probation, was arrested and subsequently charged
with the offenses of assault in the first degree in viola-
tion of § 53a-59 (a) (1), criminal possession of a firearm
in violation of General Statutes § 53a-217c, and carrying
a pistol without a permit in violation of General Statutes
§ 29-35. Thereafter, he was charged with violating the
conditions of his probation in violation of § 53a-32.
The record reveals that the following events led to
the defendant’s arrest on September 14, 2012. At
approximately 10 p.m., John Hudson was assembling
his hotdog stand with his wife; his stepdaughter, Fatima
Mitchell; and his son, the victim, on the corner of Allyn
and High Streets in Hartford. Hudson and Mitchell were
serving two customers when they noticed two men
smoking cigarettes in front of a nearby fence. One of the
men, who was later identified by Hudson and Mitchell as
the defendant, appeared to be intoxicated. After the
second man purchased a bottle of water and returned
to the fence, Hudson and Mitchell heard a gunshot. A
bullet then entered and exited the leg of the victim.
Hudson saw the defendant with a gun in his hand and
heard the person next to the defendant state to the
defendant, ‘‘you just shot the kid.’’ The other man fled
the scene, but several people restrained the defendant
until the police arrived. Both Hudson and Mitchell later
participated in a photographic array identification con-
ducted by the police and identified the defendant as the
man seen holding the gun on the night of the incident.
The court, Lobo, J., held a probation revocation hear-
ing on August 26 and September 23, 2013. After the
conclusion of evidence on September 23, 2013, the court
rendered a short, oral decision as follows: ‘‘I’ve had the
opportunity to read all of the exhibits . . . . I’ve had
the opportunity today to look at the exhibits as pre-
sented, obviously I’ve had the opportunity to [hear] the
testimonial evidence, so . . . I will note that the defen-
dant was convicted of the crime of robbery [in the] first
[degree] . . . and assault [in the] first [degree] . . .
[and] was sentenced on July 13, 2001 by Judge Solomon
to twenty years, suspended after twelve . . . with five
years of probation.
‘‘Relevant terms and conditions of his probation pro-
vided [in relevant] part that the defendant was not to
violate any criminal laws, as well as for there to be no
possession of any weapon.
‘‘The court finds that the evidence presented by the
state by a fair preponderance of the evidence [proves]
that the defendant was aware of the conditions of his
probation and that the state has proven by a fair prepon-
derance of the evidence that the defendant did violate
the conditions of his probation.’’
On October 23, 2013, the court held a dispositional
hearing in which the defendant’s probation officer testi-
fied that the defendant was not a good candidate for
continued probation. The state asked the court to incar-
cerate the defendant for the remaining eight years of
his sentence.
In its oral decision after the dispositional hearing,
the court stated that it had ‘‘carefully considered the
interests . . . which include the probationer’s liberty,
rehabilitation, the need to protect the public, whether
the goals of probation are being served, whether the
probationer’s behavior is harmful to his own rehabilita-
tion as well as the safety of the public, and whether
the probationer has abused the opportunity given him
to avoid incarceration.’’
The court found that ‘‘[the defendant] acknowledged
the conditions of his probation. That he was not to
commit any violations of the law. As to the evidence
presented in the adjudicatory phase of the hearing, [the
court] found that [the defendant] did violate his proba-
tion and that one of the conditions, in addition to not
violating the law, was to not possess any weapons. He
was in violation of that condition not to possess any
weapons when he did, in fact, appear to possess a
handgun at which time an individual was shot through
the leg.’’ The court also found ‘‘that the beneficial
aspects of probation were not, in fact, being served
. . . [and] that they were not likely to be served in the
immediate future based on the conduct in this instance,
because of the fact that [the defendant] has received
the benefit [of probation] two prior times and both
times he was not on probation for an extremely lengthy
period of time before two violent [incidents] occurred.’’
The court opened the defendant’s 2001 judgment of
conviction and sentenced the defendant to serve the
remaining eight years of his twenty year sentence. The
defendant has appealed from the trial court’s judgment
revoking his probation.
On appeal, the defendant claims that the court lacked
sufficient evidence to support its finding of a violation
of probation. He argues that the evidence adduced at
trial regarding his intent was insufficient to prove by a
fair preponderance of the evidence that his conduct
amounted to an assault in the first degree. Additionally,
the defendant argues that the evidence regarding actual
or constructive possession of the firearm that he was
alleged to have discharged was insufficient to prove
by a preponderance of the evidence that his conduct
amounted to criminal possession of a firearm or car-
rying a pistol without a permit. We disagree.
‘‘[U]nder § 53a-32, a probation revocation hearing has
two distinct components. . . . The trial court must
first conduct an adversarial evidentiary hearing to deter-
mine whether the defendant has in fact violated a condi-
tion of probation. . . . If the trial court determines that
the evidence has established a violation of a condition
of probation, then it proceeds to the second component
of probation revocation, the determination of whether
the defendant’s probationary status should be revoked.
On the basis of its consideration of the whole record,
the trial court may continue or revoke the sentence of
probation . . . [and] . . . require the defendant to
serve the sentence imposed or impose any lesser sen-
tence. . . . In making this second determination, the
trial court is vested with broad discretion. . . .
‘‘To support a finding of probation violation, the evi-
dence must induce a reasonable belief that it is more
probable than not that the defendant 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.
. . . This court may reverse the trial court’s initial fac-
tual determination that a condition of probation has
been violated only if we determine that such a finding
was clearly erroneous. . . . A finding of fact is clearly
erroneous when there is no evidence to support it . . .
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 mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling. . . . A fact is more probable than
not when it is supported by a fair preponderance of the
evidence.’’ (Citations omitted; internal quotation marks
omitted.) State v. Rollins, 51 Conn. App. 478, 481–82,
723 A.2d 817 (1999).
‘‘A revocation of probation proceeding based upon
a violation of a criminal law need not be deferred until
after a disposition of the charges underlying the arrest
because the purpose of a probation revocation hearing
is to determine whether a defendant’s conduct consti-
tuted an act sufficient to support a revocation of proba-
tion . . . rather than whether the defendant had,
beyond a reasonable doubt, violated a criminal law.
The proof of the conduct at the hearing need not be
sufficient to sustain a violation of a criminal law. . . .
In a probation violation proceeding, all that is required
is enough to satisfy the court within its sound judicial
discretion that the probationer has not met the terms
of his probation.’’ (Citations omitted; internal quotation
marks omitted.) Id., 484. Even if the defendant is ulti-
mately acquitted of the pending criminal charges, the
result of the probation hearing would not be affected.
See id., 483 (‘‘Even if we assume, arguendo, that the
defendant was in fact acquitted, the outcome of this
case remains the same. In a criminal proceeding, sub-
stantive guilt must be established beyond a reasonable
doubt; a probation violation need be proven only by a
preponderance of the evidence.’’).
The defendant erroneously conflates the criminal
charges arising out of the September 14, 2012 incident
with the violation of probation charge. He essentially
argues that the state did not prove the criminal charges
of assault in the first degree and either criminal posses-
sion of a firearm or carrying a pistol without a permit
in the adjudicatory phase of the violation of probation
hearing. The state, however, had no such burden of
proof in the violation of probation proceeding.
After a careful review of the record, we conclude that
the state met its burden in proving that the defendant
violated his probation. Specifically, a fair reading of the
record provides us with sufficient proof that the court
reasonably found, by a fair preponderance of the evi-
dence, that the defendant engaged in the commission of
acts sufficient to violate the conditions of his probation,
namely, that he not possess any weapons and that he
not violate any criminal law of this state. Accordingly,
the court’s findings were not clearly erroneous.
The judgment is affirmed.
1
General Statutes § 53a-32 (d) provides: ‘‘If such violation is established,
the court may: (1) Continue the sentence of probation or conditional dis-
charge; (2) modify or enlarge the conditions of probation or conditional
discharge; (3) extend the period of probation or conditional discharge,
provided the original period with any extensions shall not exceed the periods
authorized by section 53a-29; or (4) revoke the sentence of probation or
conditional discharge. If such sentence is revoked, the court shall require
the defendant to serve the sentence imposed or impose any lesser sentence.
Any such lesser sentence may include a term of imprisonment, all or a
portion of which may be suspended entirely or after a period set by the
court, followed by a period of probation with such conditions as the court
may establish. No such revocation shall be ordered, except upon consider-
ation of the whole record and unless such violation is established by the
introduction of reliable and probative evidence and by a preponderance of
the evidence.’’
2
‘‘A criminal defendant who enters a guilty plea under the Alford doctrine
does not admit guilt but acknowledges that the state has sufficient evidence
to convict. See State v. Palmer, 196 Conn. 157, 169 n.3, 491 A.2d 1075 (1985);
see also North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970) (holding that ‘[a]n individual accused of crime may voluntarily,
knowingly, and understandingly consent to the imposition of a prison sen-
tence even if he is unwilling or unable to admit his participation in the acts
constituting the crime’).’’ State v. Fairchild, 155 Conn. App. 196, 199 n.2,
108 A.3d 1162, cert. denied, 316 Conn. 902, A.3d (2015).