State v. Jerzy G. ( 2015 )

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STATE OF CONNECTICUT v. JERZY G.*
(AC 36586)
Gruendel, Mullins and Solomon, Js.
Argued September 17—officially released December 29, 2015
(Appeal from Superior Court, judicial district of
Fairfield, Iannotti, J. [accelerated rehabilitation
application]; Arnold, J. [motion to dismiss; termination
of accelerated rehabilitation order].)
Kelly Billings, deputy assistant public defender, with
whom was James B. Streeto, senior assistant public
defender, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney,
with whom, on the brief, were John C. Smriga, state’s
attorney, Marc R. Durso, assistant state’s attorney, and
Tiffany M. Lockshier, senior assistant state’s attorney,
for the appellee (state).
Opinion
SOLOMON, J. General Statutes § 54-56e1 establishes
a pretrial diversionary program known as accelerated
rehabilitation that permits a trial court, in its discretion,
to suspend criminal prosecution for certain offenses
against a defendant, subject to such conditions as the
court shall order. State v. Callahan, 108 Conn. App.
605, 607, 949 A.2d 513, cert. denied, 289 Conn. 916, 957
A.2d 879 (2008). The defendant, Jerzy G., applied for
and was granted admission into the state’s accelerated
rehabilitation program in connection with the charge
of sexual assault in the fourth degree in violation of
General Statutes § 53a-73a.2 Subsequently, the defen-
dant was deported to Poland, and the trial court termi-
nated his participation in the program. The defendant
appeals from the judgment of the trial court terminating
his participation in the program,3 claiming that the court
abused its discretion by (1) denying his motion to dis-
miss, and (2) refusing to continue the case until he
could return to the state and complete the program.
We dismiss the appeal as moot.
The following facts and procedural history are rele-
vant to this appeal. In January, 2010, the defendant, a
Polish national, resided at the home of the victim. The
victim previously was married to a friend of the defen-
dant, and the victim had no romantic involvement with
the defendant. On January 10, 2010, the defendant alleg-
edly approached the victim while she was standing in
the kitchen and touched her on her buttocks and
breasts. The victim called the police, and the defendant
was arrested and charged with one count of sexual
assault in the fourth degree.
In March, 2012, the defendant filed an application for
accelerated pretrial rehabilitation. A hearing was held
on this application on April 20, 2012. At the conclusion
of the hearing, the court, Iannotti, J., granted the defen-
dant’s application and imposed a period of probation
of two years with the following conditions: (1) the
defendant was not to contact the victim; (2) the defen-
dant was to undergo mental health evaluation and treat-
ment as deemed necessary; (3) the defendant was to
undergo substance abuse evaluation and treatment,
specific for alcohol abuse, as deemed necessary; and
(4) the defendant was to seek and maintain full-time
employment. The prosecutor informed the court at the
hearing that she had been in contact with representa-
tives of the United States Immigration and Customs
Enforcement (ICE) agency, who told her that the defen-
dant had overstayed his visa. The prosecutor also
informed the court that ICE represented to her that
deportation proceedings against the defendant would
commence if he were to be convicted, but that it was
unclear what would happen if he was not convicted.
In November, 2013, the Office of Adult Probation
notified the court that the defendant was deported to
Poland on August 16, 2012. The notice stated that the
defendant had not satisfactorily completed his proba-
tionary period, and requested that the court terminate
his participation in the program. A hearing was held
on November 22, 2013, at which time the defendant
moved to dismiss the sexual assault charge on the
ground of successful completion of accelerated rehabil-
itation. The court, Arnold, J., denied the defendant’s
motion, terminated the defendant’s participation in the
program, and ordered the defendant to be rearrested.
At a subsequent hearing on the defendant’s application
for a waiver of fees, costs, and expenses, and appoint-
ment of counsel in connection with the present appeal,
defense counsel confirmed that the defendant in fact
had been deported to Poland. Defense counsel also
represented to the court that she did not know the
reason for his deportation. The court granted the defen-
dant’s application for a waiver of fees and this
appeal followed.
The court explained its reasons for terminating accel-
erated rehabilitation in a memorandum of decision
issued on September 10, 2014. In this memorandum,
the court stated that it terminated accelerated rehabili-
tation because it found that the defendant had failed
to complete the program successfully. The court
emphasized that, in light of the deportation of the defen-
dant to Poland, the Office of Adult Probation was unable
to monitor whether he was in compliance with the
court’s conditions, and that compliance with these con-
ditions was necessary to determine if the defendant
was entitled to a dismissal on the basis of successful
completion. Ultimately, the court explained that
because the defendant did not prove compliance with
the imposed conditions, and because he could not be
monitored in Poland, the court found that he failed to
complete the program successfully and terminated his
participation therein accordingly.
On appeal, the defendant claims that the trial court’s
termination of his participation in the program consti-
tuted an abuse of discretion. Specifically, he argues
that the court either should have dismissed the charge
against him or continued the matter until he could reen-
ter the country and complete the program. The state
objects, arguing that the appeal is moot because the
defendant was deported at least in part for reasons
unrelated to the present case. We agree with the state.
‘‘Under our well established jurisprudence, [m]oot-
ness presents a circumstance wherein the issue before
the court has been resolved or had lost its significance
because of a change in the condition of affairs between
the parties. . . . In determining mootness, the disposi-
tive question is whether a successful appeal would ben-
efit the plaintiff or defendant in any way. . . . In other
words, the ultimate question is whether the determina-
tion of the controversy will result in practical relief to
the complainant.’’ (Citation omitted; internal quotation
marks omitted.) RAL Management, Inc. v. Valley View
Associates, 278 Conn. 672, 691, 899 A.2d 586 (2006).
‘‘Mootness implicates [this] court’s subject matter juris-
diction and is thus a threshold matter for us to resolve.’’
(Internal quotation marks omitted.) Bornemann v. Con-
necticut Siting Council, 287 Conn. 177, 181, 947 A.2d
302 (2008).
The state relies on State v. Aquino, 279 Conn. 293, 901
A.2d 1194 (2006), in support of its mootness position.
Because we agree with the state that Aquino is control-
ling and dispositive of the present appeal, we discuss
Aquino and its progeny first. The defendant in Aquino
was residing illegally in the United States when he
pleaded guilty to several crimes. He subsequently
moved to withdraw his guilty plea on the ground that
it was not knowingly and voluntarily made because
his attorney failed to advise him of the immigration
consequences of his plea. The motion to withdraw was
denied, and the defendant appealed. During the pen-
dency of the appeal, the defendant was deported. This
court ruled that, notwithstanding the defendant’s depor-
tation, his appeal was not moot because his guilty plea
would gravely impair his ability to petition for natural-
ization. State v. Aquino, 89 Conn. App. 395, 400–401,
873 A.2d 1075 (2005), rev’d, 279 Conn. 293, 901 A.2d 1194(2006). Our Supreme Court disagreed and reversed: ‘‘We
conclude that, in the absence of any evidence that the
defendant’s guilty plea was the sole reason for his
deportation, the defendant’s appeal must be dismissed
as moot.’’ State v. Aquino, supra, 279 Conn. 298. The
court observed: ‘‘The defendant did not produce any
evidence at the hearing on his motion to withdraw his
guilty plea—indeed, he did not even claim—that he
would be deported solely as the result of his guilty
plea. While this appeal was pending, the defendant was
deported. There is no evidence in the record as to the
reason for his deportation. If it was not the result of
his guilty plea alone, then this court can grant no practi-
cal relief and any decision rendered by this court would
be purely advisory.’’ (Footnote omitted.) Id.This court consistently has followed Aquino in subse-
quent cases. The defendant in State v. Chavarro, 130
Conn. App. 12, 21 A.3d 541 (2011), a Colombian national,
was granted permission to live in the United States until
June 22, 1998. He remained in the country past this date
illegally. Several years later, he was arrested, pleaded
guilty to possession of marijuana with intent to sell,
and was sentenced to three years of probation. After
being sentenced, the defendant was notified by the
United States Department of Homeland Security that
it had commenced removal proceedings against him
because (1) he remained in the United States illegally
after June 22, 1998, and (2) he was convicted of posses-
sion of marijuana with intent to sell. The United States
Immigration Court thereafter ordered the defendant
deported to Colombia, although the deportation order
did not set forth the basis for the court’s decision. After
an unsuccessful attempt to withdraw his guilty plea,
the defendant appealed to this court. This court held
that Aquino was controlling and dismissed the appeal
as moot, reasoning: ‘‘As the record indicates, the defen-
dant was subject to deportation for two reasons: (1)
his illegal immigration status; and (2) his conviction
for possession of marijuana with intent to sell. The
immigration court, however, did not set forth in its order
the reason, or reasons, for the defendant’s deportation.
Furthermore, the defendant has failed to produce any
evidence from which it could be determined on what
basis the court ordered the defendant deported. Conse-
quently, we are unable to discern whether the defendant
was deported because of his illegal immigration status,
his conviction or both. Therefore, because the defen-
dant has failed to establish that his deportation was the
result of his guilty plea alone . . . we are unable to
provide the defendant with any practical relief and,
accordingly, the appeal is moot.’’ (Citation omitted;
internal quotation marks omitted.) Id., 17–18.
In Quiroga v. Commissioner of Correction, 149
Conn. App. 168, 87 A.3d 1171, cert. denied, 311 Conn.
950, 91 A.3d 462 (2014), the petitioner, a citizen of Uru-
guay, was a permanent resident of the United States.
The petitioner was convicted of larceny following a
plea of nolo contendere and served time in jail. The
petitioner later brought a petition for a writ of habeas
corpus, claiming that his trial counsel’s failure to
apprise him of the fact that his larceny plea could result
in deportation constituted ineffective assistance of
counsel. The petitioner appealed from the habeas
court’s denial of his petition, but was deported during
the pendency of the appeal. This court held that the
appeal was moot: ‘‘There is no evidence in the record
before us that the petitioner’s guilty plea to larceny in
the first degree was the sole reason for his deportation.
To the contrary, the immigration judge specifically
found that removability on the ground of the petitioner’s
possession of narcotics convictions had been estab-
lished by clear and convincing evidence.’’ (Emphasis
in original; internal quotation marks omitted.) Id., 173.
The petitioner argued that his larceny conviction was
the primary reason for his deportation and that, in the
absence of that conviction, he would have been eligible
for possible discretionary cancellation of removal. The
court rejected this argument, reasoning that ‘‘[i]t never-
theless remains that Aquino requires proof that the
larceny plea was the exclusive basis of the petitioner’s
deportation, rather than a primary or likely one.’’
(Emphasis added.) Id., 174.
In sum, the rule of Aquino and its progeny is that an
appeal of a deported appellant is moot if the appellant
fails to prove that the unfavorable judgment that is the
subject of the appeal was the exclusive basis of his
or her deportation. State v. Aquino, supra, 279 Conn.
298–99. Applying these principles to the present case,
we conclude that the defendant failed to prove that the
court’s termination of accelerated rehabilitation was
the exclusive basis of his deportation and, therefore,
that his appeal is moot. During the hearing on the defen-
dant’s application for accelerated rehabilitation, the
prosecutor notified the court that ICE had made it clear
that the defendant had overstayed his visa and was at
risk for deportation. At the hearing on the defendant’s
application for a waiver of fees in connection with this
appeal, defense counsel represented to the court that
she did not know why the defendant was deported.
Additionally, and in response to questions posed during
oral argument before this court, defense counsel con-
ceded that the defendant’s visa overstay was the only
justification for his deportation ever presented to her.
Finally, the defendant’s reply brief states that ‘‘unlike
Aquino and its progeny, the reason for the defendant’s
deportation is clear from the record—visa overstay.’’
Unlike in Chavarro, where this court noted that it was
‘‘unable to discern whether the defendant was deported
because of his illegal immigration status, his conviction
or both’’; State v. Chavarro, supra, 130 Conn. App. 17;
there is no dispute in the present case that the defendant
was deported at least in part for reasons unrelated
to these criminal proceedings. Moreover, there is no
dispute that the court terminated the defendant’s partic-
ipation in the program after the defendant was
deported. In light of this evidence, we conclude that the
defendant failed to demonstrate that he was deported
solely on the basis of the court’s termination of his
participation in the accelerated rehabilitation program.
Consequently, because the defendant was deported at
least in part for reasons independent of his termination
from the program, this court is unable to afford him
any practical relief4 and any opinion rendered by this
court would be purely advisory. See State v. Aquino,
supra, 279 Conn. 298.
The defendant nevertheless argues that this appeal
is not moot because the collateral consequences excep-
tion to the mootness doctrine applies. ‘‘[U]nder this
court’s long-standing mootness jurisprudence . . .
despite developments during the pendency of an appeal
that would otherwise render a claim moot, the court
may retain jurisdiction when a litigant shows that there
is a reasonable possibility that prejudicial collateral
consequences will occur.’’ (Internal quotation marks
omitted.) State v. Preston, 286 Conn. 367, 382, 944 A.2d
276 (2008). ‘‘[T]o invoke successfully the collateral con-
sequences doctrine, the litigant must show that there
is a reasonable possibility that prejudicial collateral
consequences will occur. Accordingly, the litigant must
establish these consequences by more than mere con-
jecture, but need not demonstrate that these conse-
quences are more probable than not. This standard
provides the necessary limitations on justiciability
underlying the mootness doctrine itself. Where there is
no direct practical relief available from the reversal of
the judgment . . . the collateral consequences doc-
trine acts as a surrogate, calling for a determination
whether a decision in the case can afford the litigant
some practical relief in the future.’’ (Internal quotation
marks omitted.) Putman v. Kennedy, 279 Conn. 162,
169, 900 A.2d 1256 (2006).
With respect to collateral consequences, the defen-
dant argues that the termination of his participation in
accelerated rehabilitation ‘‘may well prevent [him] from
ever re-entering the United States, visiting the United
States, working in the United States, or seeking natural-
ization as a United States citizen.’’ A similar claim was
made and rejected in Aquino. In Aquino, this court held
that the defendant’s appeal was not moot because his
guilty plea would have collateral consequences impli-
cating his ability to petition for naturalization. Our
Supreme Court disagreed, reasoning that ‘‘[j]ust as there
is no evidence in the record before us establishing the
reason for the defendant’s deportation . . . there is
[also] no evidence to suggest that, in the absence of
the guilty plea, the defendant would be allowed to reen-
ter this country or become a citizen.’’ State v. Aquino,
supra, 279 Conn. 298–99 n.3. Likewise, the defendant
in the present case has failed to produce any evidence
to establish that, in the absence of the court’s termina-
tion of accelerated rehabilitation, he would be allowed
to reenter, visit, or naturalize.5 In the absence of any
evidence that the defendant would not be allowed to
reenter this country or become a citizen, we conclude
that the defendant’s claimed collateral consequences
are merely conjectural.
The appeal is dismissed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of sexual abuse, we decline to use the defendant’s full name or to
identify the victim or others through whom the victim’s identity may be
ascertained. See General Statutes § 54-86e.
1
General Statutes § 54-56e provides in relevant part: ‘‘(a) There shall be
a pretrial program for accelerated rehabilitation of persons accused of a
crime or crimes . . . for which a sentence to a term of imprisonment may
be imposed, which crimes or violations are not of a serious nature. . . .
‘‘(b) The court may, in its discretion, invoke such program on motion of
the defendant or on motion of a state’s attorney or prosecuting attorney
with respect to a defendant (1) who, the court believes, will probably not
offend in the future, (2) who has no previous record of conviction of a
crime . . . and (3) who states under oath, in open court or before any
person designated by the clerk and duly authorized to administer oaths,
under the penalties of perjury, (A) that the defendant has never had such
program invoked on the defendant’s behalf . . . provided the defendant
shall agree thereto and provided notice has been given by the defendant
. . . to the victim or victims of such crime . . . if any, by registered or
certified mail and such victim or victims have an opportunity to be heard
thereon. . . . No defendant shall be allowed to participate in the pretrial
program for accelerated rehabilitation more than two times. . . .
‘‘(d) Except as provided in subsection (e) of this section, any defendant
who enters such program shall pay to the court a participation fee of one
hundred dollars. Any defendant who enters such program shall agree to the
tolling of any statute of limitations with respect to such crime and to a
waiver of the right to a speedy trial. Any such defendant shall appear in
court and shall, under such conditions as the court shall order, be released
to the custody of the Court Support Services Division . . . . If the defendant
refuses to accept, or, having accepted, violates such conditions, the defen-
dant’s case shall be brought to trial. The period of such probation or supervi-
sion, or both, shall not exceed two years. . . .’’
2
General Statutes § 53a-73a provides in relevant part: ‘‘(a) A person is
guilty of sexual assault in the fourth degree when . . . (2) such person
subjects another person to sexual contact without such other person’s con-
sent . . . .’’
3
‘‘An order of the court . . . terminating the participation of a defendant
in [the accelerated rehabilitation] program shall be a final judgment for
purposes of appeal.’’ General Statutes § 54-56e (f).
4
The defendant attempts to distinguish Aquino and the cases following
it, arguing that those cases involved either pleas of guilty or nolo contendere,
whereas the defendant in the present case did not plead at all but instead
voluntarily entered into a pretrial diversionary program. The nature of a
defendant’s response to criminal charges has never been the focal point of
the analysis in our jurisprudence concerning the justiciability of a deportee’s
appeal. Rather, our courts have focused on the availability of practical relief.
5
In fact, defense counsel represented to the court that there is no evidence
that the defendant even wishes to return to the United States. The only
indication of the defendant’s intention in this regard is found in his statement
to the court when he applied for accelerated rehabilitation that he wanted
to return to Poland.