Lewis v. Commissioner of Correction ( 2016 )

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LEWIS v. COMMISSIONER OF CORRECTION—CONCURRENCE
PRESCOTT, J., concurring. I agree with the conclu-
sions and the analysis set forth in the majority opinion.
I write separately only to explain further why I think
that the present appeal was not rendered moot by the
release of the petitioner, Prince Lewis, from prison dur-
ing its pendency and by the transfer of his probation
supervision to the state of New York.1 See footnote 5
of the majority opinion.
As our Supreme Court noted in State v. Ovechka,
292 Conn. 533, 538 n.8, 975 A.2d 1 (2009), an appeal
challenging a criminal conviction is not rendered moot
by a defendant’s release from incarceration because of
the collateral consequences that attend a conviction, as
well as the fact that the defendant in that case remained
subject to a period of probation. Thus, our Supreme
Court implicitly concluded that a successful criminal
appeal that results in vacating the conviction renders
the entire sentence, including any remaining probation-
ary period, void. Applying that reasoning to this habeas
case, the petitioner could still obtain practical relief
from an adjudication of this appeal, despite having been
released from prison, because he remains on probation.
In the present case, if the petitioner successfully pre-
vailed on his claim in this appeal that the state of Con-
necticut waived jurisdiction over him by failing to seek
his reincarceration over many years, he would no longer
be obligated to serve any portion of his sentence, includ-
ing the period of probation.
The respondent contends that because the petition-
er’s probation is being supervised by the state of New
York, any relationship between the parties has ended.
Nevertheless, even though the petitioner’s probation
has been transferred to the state of New York, a favor-
able ruling in this appeal would benefit the petitioner by
eliminating his obligation to serve probation anywhere
and, if violated, to potentially serve the suspended por-
tion of his sentence. Moreover, under the Interstate
Compact for Adult Offender Supervision, the ‘‘sending
state’’ typically reserves jurisdiction to conduct proba-
tion revocation proceedings if the probationer is alleged
to have violated the terms of his probation, unless it is
clear that the sending state has relinquished all jurisdic-
tion. See, e.g., Scott v. Virginia, 54 Va. App. 142, 149–50,
676 S.E.2d 343 (2009). The respondent has not called
our attention to any evidence that Connecticut has relin-
quished all jurisdiction over the petitioner-probationer.
Thus, the fact that he is allegedly being supervised on
probation by the state of New York has no bearing on
whether he can obtain practical relief from adjudication
of this appeal. Accordingly, because a successful appeal
would have afforded the petitioner some practical
relief, his appeal is not moot.
1
In response to the motion to dismiss this appeal as moot filed by the
respondent, the Commissioner of Correction, the petitioner filed an opposi-
tion and a motion seeking an evidentiary hearing. Each contained an ‘‘offer
of proof,’’ in which the petitioner set forth facts he expected to prove at
the proposed evidentiary hearing. In its opposition to the motion for an
evidentiary hearing, the respondent stated that it was not disputed that ‘‘the
petitioner is released from the custody of the respondent Commissioner of
Correction and is on probation in New York state pursuant to the Interstate
Compact for Adult Offender Supervision. See [General Statutes] § 54-133 et
seq.’’ Because the central facts regarding mootness are not disputed, I
assume them for purposes of deciding whether the petitioner can be afforded
practical relief.