State v. Obas , 147 Conn. App. 465 ( 2014 )

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STATE OF CONNECTICUT v. MYCALL OBAS
(AC 34598)
DiPentima, C. J., and Sheldon and Flynn, Js.
Argued October 22, 2013—officially released January 14, 2014
(Appeal from Superior Court, judicial district of
Danbury, Mintz, J. [criminal judgment; extension of
probation]; Blawie, J. [motion to modify probation;
request for permission to appeal].)
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom were Sean McGuinness, deputy assistant
state’s attorney, and, on the brief, Stephen J. Sedensky
III, state’s attorney, for the appellant (state).
Neal Cone, senior assistant public defender, with
whom was Rosemarie Chapdelaine, senior assistant
public defender, for the appellee (defendant).
Opinion
FLYNN, J. At the heart of the case before us is the
defendant’s request to be exempted from continued
registration as a sex offender pursuant to General Stat-
utes § 54-251. The defendant, Mycall Obas, was con-
victed of one count of sexual assault in the second
degree in violation of General Statutes (Rev. to 2001)
§ 53a-71 (a) (1), resulting from a 2002 offense when
he was age eighteen, committed against a minor, age
fifteen, who could not by law consent. The court granted
the defendant’s motion made approximately seven
years after his guilty plea and sentencing, which, among
other things, had imposed that condition of probation.
Pursuant to General Statutes § 54-96, the state
requested permission to appeal from the granting of
the defendant’s motion, which the court denied. The
state now appeals from that denial of the right to appeal,
as well as the court’s judgment granting an exemption
from registering and releasing the defendant of certain
other conditions imposed at his sentencing. It does so
on grounds that (1) permission to appeal was improp-
erly denied and (2) any exemption from registration
must be made at the time of the defendant’s sentencing,
or not at all. As a third reason for appeal, the state argues
that registration as a sex offender and the condition of
no unsupervised contact with any minor under sixteen
years of age was part of the plea bargain struck on
December 11, 2003, and that, once the court accepted
it, as a contract, the court was without authority to
change it in a later proceeding. We disagree and con-
clude that although the right to appeal was improvi-
dently denied to the state, the court had authority to
grant the exemption and modification of the defendant’s
probationary conditions. Accordingly, we affirm that
aspect of the judgment of the trial court.
The following facts and procedural history inform
our review. The defendant pleaded guilty to one count
of sexual assault in the second degree on December
11, 2003. The plea stemmed from a 2002 incident when
the defendant was eighteen years old and a high school
senior. The victim was a fifteen year old student who
attended the same school as the defendant. According
to the prosecutor, the victim never complained that her
sexual involvement with the defendant was not con-
sensual.
The defendant cooperated fully with the police inves-
tigation and agreed to testify against his codefendant
at trial. As part of the plea agreement struck between
the defendant and the state, the defendant received a
ten year sentence of imprisonment, suspended after
the mandatory minimum nine months, followed by ten
years of probation. The prosecutor explained to the
court: ‘‘The conditions would be: to register as a sex
offender, that’s a ten year registration . . . . [The] sex
offender evaluation and any treatment deemed neces-
sary. No contact with any individual under, unsuper-
vised contact, with anyone under [sixteen] and no
contact, whatsoever, directly or indirectly with the vic-
tim.’’1 There was no agreement between the defendant
and the state that the defendant would never seek modi-
fication of the conditions of probation.
Following the prosecutor’s recitation of the underly-
ing facts, plea agreement, and recommendation for a
split sentence followed by probation with special condi-
tions, the court canvassed the defendant.
‘‘The Court: You’ve heard the agreed upon recommen-
dation, which is ten years, execution suspended after
nine months, which is a mandatory minimum, ten years
of probation, standard issues—standard conditions of
probation, special conditions of sex offender evaluation
and treatment, as deemed necessary and appropriate
by Probation. Registration under sex offender status
for [ten] years, no contact with the victim and no unsu-
pervised contact with anyone under the age of [sixteen]
years of age. Do you understand that to be the agreed
upon recommendation?
‘‘The Defendant: Yes, Your Honor.’’
The court accepted the defendant’s plea and imposed
sentence in accordance with the agreed upon disposi-
tion. The defendant was ordered, ‘‘[i]n addition to the
standard conditions of probation,’’ to register as a sex
offender for a period of ten years, to undergo sex
offender evaluation and treatment as deemed neces-
sary, to have no unsupervised contact with anyone
under age sixteen and to have no contact with the
victim.
Upon his release from custody in November, 2004,
the defendant began reporting to the Office of Adult
Probation, registering as a sex offender and receiving
sex offender treatment. He violated his probation in
2005 by failing to report a change of address following
his parents’ eviction from their home. For this violation,
two additional years were added to his probation. Since
the 2005 violation, the defendant has reported timely
to his assigned probation officer, has continued to
receive sex offender treatment, and has not engaged in
any additional criminal activity. He earned a high school
diploma, enrolled in community college and has main-
tained a full-time job.
In 2011, the defendant filed a motion to modify the
conditions of his probation. Specifically, the defendant
asked that the term of his probation be reduced and
that the order that he register as a sex offender be
terminated. As a predicate for the hearing on the defen-
dant’s motion, the court ordered him to undergo an
additional psychosexual evaluation. The evaluation
concluded that the defendant presented a low risk of
reoffending and that he ‘‘would not be one whom the
community should fear.’’ (Internal quotation marks
omitted.) Three separate probation status reports
authored by the defendant’s supervising officer in the
sex offender unit lauded his rehabilitation and raised
no objection to the defendant’s requested modification.
Following contested hearings on January 31, 2012,
and April 20, 2012,2 the court, Blawie, J., exempted the
defendant from the continued obligation to register as
a sex offender under § 54-251. Pursuant to § 54-251 (b),
the court made findings that the defendant was under
nineteen years of age at the time of the offense and
that registration was not required for public safety. The
court also modified the probation condition prohibiting
unsupervised contact with anyone under age sixteen
to allow such interactions but only to the extent
approved by the Office of Adult Probation. In addition,
the court allowed the defendant to travel to South Africa
as approved by the Office of Adult Probation. The court
denied that part of the defendant’s motion in which he
sought to reduce his probation from twelve years to
ten years.
The state filed a motion requesting permission to
appeal from the trial court’s modification order. The
trial court denied the state’s request, but the state none-
theless filed this appeal. The trial court, sua sponte,
issued a memorandum of decision on May 30, 2013,
articulating the reasoning for its decision. The state
takes the view that this action by the court was extraor-
dinary since neither party requested an articulation.
However, our Supreme Court has explained: ‘‘Although
we encourage trial courts to issue memoranda of deci-
sion at the time of rendering judgment, we recognize
that under certain circumstances it is permissible to
render a judgment and thereafter issue a memorandum
of decision.’’ Lauer v. Zoning Commission, 246 Conn.
251, 261, 716 A.2d 840 (1998). ‘‘A memorandum of deci-
sion becomes imperative when an appeal is taken
because it provides . . . the appellate court with the
basis of the trial court’s underlying reasoning for its
decision.’’ Id., 260.
A memorandum of decision is particularly helpful
here because our case law counsels a reviewing court
to look to the memorandum in considering whether the
trial court’s denial of the state’s request for permission
to appeal constitutes an extreme abuse of discretion.
See State v. Peeler, 271 Conn. 338, 409, 857 A.2d 808(2004), cert. denied, 546 U.S. 845, 126 S. Ct 94, 163 L.
Ed. 2d 110 (2005).
I
We turn first to whether the court improperly denied
the state certification to appeal, and conclude that it did.
Section 54-96 provides: ‘‘Appeals from the rulings and
decisions of the Superior Court, upon all questions of
law arising on the trial of criminal cases, may be taken
by the state, with the permission of the presiding judge,
to the Supreme Court or to the Appellate Court, in the
same manner and to the same effect as if made by the
accused.’’ The statutory language appears clear on its
face to permit appeals by the state only ‘‘with the per-
mission of the [court] . . . .’’ However, our state’s high-
est court in State v. James, 261 Conn. 395, 408 n.18,
408–409, 802 A.2d 820 (2002), essentially adopted the
reasoning of Justice Shea’s dissenting opinion in State
v. S & R Sanitation Services, Inc., 202 Conn. 300, 313–
16, 521 A.2d 1017 (1987). In S & R Sanitation Services,
Inc., Justice Shea opined: ‘‘To the extent that the [major-
ity] opinion may rely on the elaborate discussion by
the trial court of the grounds upon which it dismissed
the information as its statement of ‘considered rea-
son[s]’ for denying permission to appeal, the implication
is that, so long as the memorandum of decision gives
more than cursory treatment to the issues, a trial judge
has absolute discretion to deny permission to appeal
under the statute. The legislature could never have
intended to vest in a trial judge such arbitrary authority
to preclude appellate review of his own decisions. It is
fundamental that one cannot be a judge in his own case.
Unless this principle is deemed to have been wholly
disregarded in § 54-96 by making the trial judge’s deter-
mination conclusive, so long as the record demon-
strates that sufficient judicial effort has been devoted
to the issues, a denial of permission to appeal cannot
properly be based upon the trier’s view that his judg-
ment is correct and that any appeal therefrom would
be fruitless.’’ Id., 314–15 (Shea, J., dissenting).
In State v. Peeler, supra, 271 Conn. 408, our Supreme
Court set forth the appropriate standard to review
appeals where the trial court has denied the state the
right to appeal pursuant to § 54-96. ‘‘As a general propo-
sition . . . § 54-96 authorizes the state to appeal ques-
tions of law in a criminal case only if the trial court
grants permission to appeal. Section 54-96, however,
does not preclude an appeal by the state when the
denial was so arbitrary as to constitute an extreme
abuse of discretion rendering the denial ineffective. In
such cases the statute’s condition requiring the court’s
permission to appeal cannot serve to insulate a trial
court from review by this court; rather, the statute as
a whole remains operative to allow appeal by the state.
. . . Although we accord great deference to the trial
court’s discretionary rulings on these matters, that does
not mean that its decision is shielded from our scrutiny.
. . . Section 54-96 does not deprive this court of juris-
diction simply because the trial court gave considered
reasons when it denied the state permission to appeal.
. . . Confidence in our judicial system would be
severely eroded if the trial court had the authority to
dismiss [the penalty phase] against [a] defendant . . .
on an unsound premise, and could then insulate its
decision from appellate review. . . . Consequently,
this court will review a trial court’s decision denying
the state an appeal and will not uphold the denial if
the record manifests a clear and extreme abuse of dis-
cretion or [if] injustice appears to have been done.’’
(Citations omitted; internal quotation marks omitted.)
Id., 408–409.
‘‘[I]n the context of evaluating whether a court has
abused its discretion in denying requests for certifica-
tion or permission to appeal, we repeatedly have
applied the criteria set forth in Lozada v. Deeds, 498
U.S. 430, 432, 111 S. Ct. 860, 112 L. Ed. 2d 956 (1991).
See, e.g., State v. James, [supra, 261 Conn. 405–10]
(denial of state’s request for permission to appeal from
court’s ruling that police lacked probable cause to
arrest); Seebeck v. State, 246 Conn. 514, 534, 717 A.2d
1161 (1998) (denial of request for certification to appeal
from denial of petition for new trial); Simms v. Warden,
230 Conn. 608, 616, 646 A.2d 126 (1994) (denial of peti-
tion for certification to appeal from denial of writ of
habeas corpus). The Lozada inquiry was established in
order to determine whether a petitioner has made the
requisite substantial showing of the denial of a federal
right for the issuance of the required certificate of prob-
able cause to appeal the denial of federal habeas relief
. . . . In Lozada, the United States Supreme Court held
that the required substantial showing was made if the
petitioner [1] demonstrate[s] that the issues are debat-
able among jurists of reason; [2] that a court could
resolve the issues in a different manner; or [3] that the
questions are adequate to deserve encouragement to
proceed further. . . . In the federal courts, the proba-
ble cause certificate serves the same policy goal as the
granting of permission for certification to appeal does
in Connecticut, namely, to screen out frivolous appeals
while still protecting the litigants’ statutory right to
appellate review of adverse determinations. . . . [Con-
sequently], we held that the Lozada criteria w[ere]
appropriate in evaluating an abuse of discretion in
which the state sought permission to appeal under . . .
§ 54-96. State v. James, supra, [405–10]. Thus, [we have
made] clear that when a petitioner presents an issue
on appeal that satisfies any one of the Lozada criteria,
that petitioner ought to have that issue considered on
appeal.’’ (Internal quotation marks omitted.) State v.
Peeler, supra, 271 Conn. 409–10.
We conclude from all of this that despite the statutory
language of § 54-96 permitting the state to appeal ‘‘with
the permission of the [court],’’ that the state, after
requesting permission to appeal, may directly appeal a
question of law without the permission of the court
when permission is expressly denied. On appeal, the
reviewing court will determine whether the trial court’s
denial constituted an extreme abuse of discretion or
would work an injustice using the alternatives found in
the Lozada criteria. Even if the state was improvidently
denied the right to appeal, the judgments may be
affirmed if the facts and law so warrant that result. See,
e.g., Gibson v. Commissioner of Correction, 118 Conn.
App. 863, 864, 986 A.2d 303 (concluding habeas court
abused its discretion by denying certification to appeal,
but affirming the court’s decision on the merits), cert.
denied, 295 Conn. 919, 991 A.2d 565 (2010).
We first analyze each of the state’s appellate issues
in light of the criteria set forth in Lozada, and conclude
they both deserve appellate review. See Lozada v.
Deeds, supra, 498 U.S. 432. Lozada counsels that appel-
late review should be permitted if a substantial showing
is made that the issues are debatable among jurists of
reason, that a court could resolve the issues in a differ-
ent manner, or that the questions are adequate to
deserve encouragement to proceed further. Id.; see also
State v. James, supra, 261 Conn. 404.
Two issues of law were raised by the state before
the trial court, neither of which previously has been
decided by the Connecticut Supreme or Appellate
Courts. First, is the issue of whether § 54-251 (b) permits
granting an exemption from registration after the sen-
tence has begun, in accordance with a plea agreement,
by modifying a probationary term requiring registration.
Second, is the issue of whether the plea agreement
barred later modification of the sex offender registra-
tion requirement and the condition of no unsupervised
contact with minors under sixteen. These are questions
of law on which our state’s court of last resort has not
ruled, both debatable among jurists of reason and, both
deserving encouragement to proceed further. See State
v. James, supra, 261 Conn. 404. We therefore conclude
that the court’s denial of the state’s request for permis-
sion to appeal was improvident, and we review and
decide each of the legal issues raised by the state in
turn.3
II
We next address the state’s claim that § 54-251 (b)
does not permit the court to grant the defendant’s
request for an exemption from the registration require-
ments for sex offenders approximately seven years after
the defendant initially was required to register. We
disagree.
This claim presents a question of statutory construc-
tion, over which we exercise plenary review. See State
v. Burns, 236 Conn. 18, 22, 670 A.2d 851 (1996). Section
54-251 (a) provides in relevant part: ‘‘Any person who
has been convicted or found not guilty by reason of
mental disease or defect of a criminal offense against
a victim who is a minor or a nonviolent sexual offense,
and is released into the community on or after October
1, 1998, shall, within three days following such release
or, if such person is in the custody of the Commissioner
of Correction, at such time prior to release as the com-
missioner shall direct, and whether or not such person’s
place of residence is in this state, register such person’s
name, identifying factors, criminal history record, resi-
dence address and electronic mail address, instant mes-
sage address or other similar Internet communication
identifier, if any, with the Commissioner of Emergency
Services and Public Protection, on such forms and in
such locations as the commissioner shall direct, and
shall maintain such registration for ten years except
that any person who has one or more prior convictions
of any such offense or who is convicted of a violation
of subdivision (2) of subsection (a) of section 53a-70
shall maintain such registration for life. . . .’’
Subsection (b) of § 54-251 provides for an exemption:
‘‘Notwithstanding the provisions of subsection (a) of
this section, the court may exempt any person who has
been convicted or found not guilty by reason of mental
disease or defect of a violation of subdivision (1) of
subsection (a) of section 53a-71 from the registration
requirements of this section if the court finds that such
person was under nineteen years of age at the time of
the offense and that registration is not required for
public safety.’’
The state argues that an exemption from registration
must be strictly construed because there is no language
within § 54-251 (b) expressly authorizing a court to
grant an exemption once registration has commenced,
and thus the court had no power to do so because the
court cannot supply omissions in or add exceptions to
a statute. The state further argues that the text of the
statute must be considered in relation to other statutory
provisions. The state argues that because § 54-251 (a)
requires registration within three days of release into
the community or if ‘‘in the custody of the Commis-
sioner of Correction, at such time prior to release as
the commissioner shall direct,’’ that provision, when
considered with § 54-251 (d), which requires notice of
any exemption application both to the Office of Victim
Services and the Department of Correction, shows that
the legislature expected that an application for exemp-
tion would be filed before the defendant was released
from confinement and was required initially to register.
It maintains that if the defendant may be granted an
exemption seven years after he had been released from
confinement and had commenced registering, it would
not be logical to notify both the Office of Victim Services
and the Victim Services Unit within Department of Cor-
rection.4 The state urges that logic dictates that the
Commissioner of the Victim Services Unit of the Depart-
ment of Correction would not receive statutorily man-
dated notice of any exemption application, unless the
defendant was required to file notice before release
from confinement. We do not accept the state’s faulty
premise. It wrongly assumes that all defendants who
are required to register will be imprisoned for their
offenses. The state’s logic fails because registration also
is required for offenses that would not require a defen-
dant to be jailed. For example, conviction of a crime
such as public indecency, in violation of General Stat-
utes § 53a-186—a misdemeanor, for which a mandatory
minimum term of imprisonment is not required and
which is sometimes punished only with a fine rather
than incarceration—still requires that the Commis-
sioner of Correction be notified. A person who is never
jailed for conviction of a sexual offense has no confine-
ment to prison, and therefore is never released from
confinement. Yet, he is not barred from seeking an
exemption from required registration. We therefore
reject this argument because of its faulty premise.
The state also makes the argument that the statute
does not contain language explicitly permitting a later
exemption from registration, and thus such a later
exemption is not permitted. We do not agree. Like the
requirement in § 54-251 (a) of registration of sex offend-
ers, many distinct statutes use the phrase or some varia-
tion of the phrase ‘‘may exempt.’’ Although these
statutes do not authorize a later exemption expressly,
the context in which this language appears in the statu-
tory text, the statutory subject matter, and the statutory
purpose and relation to other statutes suggest, as to
some of them, that the legislature did not necessarily
intend to require that the exemption needed to be
granted concomitant to the underlying statutory obliga-
tion taking effect. This is evident, even though there is
no language in these statutes expressly authorizing an
application for exemption to be made after a point
in time when it otherwise initially would have been
available. We list a few of those statutes that are illustra-
tive of this point.
For example, General Statutes § 12-81n permits
municipalities to ‘‘provide an exemption’’ to businesses
that offer child care services to residents of the munici-
pality from paying property tax on up to 100 percent
of the assessed value of the property of the business
used in providing day care services and up to 10 percent
of the balance of the assessed value of the business.
Nothing in the text of the statute, or the context in
which this language appears, suggests that the exemp-
tion must be granted when the business begins offering
child care services, or else it is forfeited in perpetuity.
The property used may increase in value and hence,
its new assessment, may necessitate a new, but later
request for exemption. There is a legislative purpose
encouraging such facilities for the proper care of small
children of working parents. It is equally served whether
the exemption is sought after such a facility has first
paid property tax in an initial tax year or it later seeks
exemption for future years.
Likewise, General Statutes § 22-339b (a) requires
owners or keepers of canines and cats of three months
of age or older to have such animals vaccinated against
rabies. These inoculations must be repeated periodi-
cally during the life of a canine or cat. However, subsec-
tion (b) states that the State Veterinarian or
Commissioner of Agriculture ‘‘may grant an exemption’’
from vaccination if it is determined that that vaccination
would be harmful to the animal. The purpose of this
statute is to permit exempting an animal from vaccina-
tion at any time when it would be harmful to the animal.
The statute does not require that the exemption be
obtained concomitant to the requirement to vaccinate
(i.e., when the owner or keeper first takes possession
of a healthy animal). A young pup may tolerate what
an old dog cannot.
Finally, General Statutes § 34-229 (a) requires foreign
limited liability companies (LLC) registered or that reg-
ularly transact business in the state to electronically
file an annual report with the Secretary of the State.
However, the Secretary of the State ‘‘may grant an
exemption’’ to this requirement if good cause is shown.
Nothing in the statute precludes a company from seek-
ing an exemption from this requirement after it has
electronically filed the report for several years. A good
cause may arise in a subsequent year long after the
out-of-state LLC has filed electronically. We reject the
state’s argument that the lack of express language in
§ 54-251 (b) authorizing an exemption does not permit
a defendant to request an exemption after he has com-
menced his obligation to register as a sex offender.
Section 54-251 (b) must be viewed in the context of the
probation statute, General Statutes § 53a-29, which has
as its purpose rehabilitation of a defendant. See State
v. Faraday, 268 Conn. 174, 180, 842 A.2d 567 (2004). If
that rehabilitative purpose is accomplished, an exemp-
tion from registration may be justified, even though
rehabilitation had not occurred when the defendant
was first placed on probation. ‘‘[W]e read each statute
in a manner that will not thwart its intended purpose
or lead to absurd results.’’ (Internal quotation marks
omitted.) State v. Pommer, 110 Conn. App. 608, 614,
955 A.2d 639, cert. denied, 289 Conn. 951, 961 A.2d
418 (2008). Furthermore, General Statutes § 53a-28 (d)
expressly authorizes altering a period of probation.
We thus conclude that § 54-251 (b) permits a court
to grant a criminal defendant’s request to have an
exemption from the registration requirements for sex
offenders after the obligation to register has com-
menced where the registration is made a special condi-
tion of probation, and the court finds that the
defendant’s later rehabilitated status justifies modifica-
tion. In the present case, the court found that the defen-
dant had rehabilitated himself sufficiently so as to
justify modification of the terms of his probation. We
conclude that the court acted within its authority in
so doing.
III
We next address the state’s claim that because the
defendant’s guilty plea and the state’s recommended
sentence resulted from a plea bargain, the court improp-
erly granted the defendant’s motion to modify certain
conditions of his probation requiring registration as a
sex offender in the statewide registry compiled pursu-
ant to § 54-251 (b), and modifying the restriction that
he have no unsupervised contact with minors under
sixteen unless approved by the Office of Adult Proba-
tion. Specifically, the state argues that ‘‘under circum-
stances such as the present case, where the defendant,
as part of the plea bargained agreement, specifically
agreed to abide by [these] conditions, the trial court,
under well-established principles of contract law,
should not have permitted the defendant, after having
received the benefits of the agreement, to request [mod-
ification].’’ We reject the state’s argument.
To the extent that a plea agreement is akin to a
contract; see State v. Garvin, 242 Conn. 296, 314, 699
A.2d 921 (1997); it is a contract between the defendant
and the state—not between the defendant, the state
and the court. See Santobello v. New York, 404 U.S. 257,
262, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) (describing
plea of guilty as ‘‘a promise or agreement of the prosecu-
tor’’ to defendant). As the state itself acknowledges in
its brief, ‘‘the [s]tate and the defendant are bound by
the clear and unambiguous terms of the plea bargain
agreement’’; ‘‘[t]he trial court, however, is not a party
to the agreement . . . .’’5 The requirements imposed
on the defendant to register as a sex offender and not
to have unsupervised contact with children under age
sixteen were imposed as special conditions of the defen-
dant’s probation.6
With that understanding in mind, we now proceed to
analyze our law governing probation. General Statutes
§ 53a-30 (c) provides in relevant part: ‘‘At any time dur-
ing the period of probation or conditional discharge,
after hearing and for good cause shown, the court may
modify or enlarge the conditions [of probation],
whether originally imposed by the court under this
section or otherwise . . . .’’ (Emphasis added.)
The meaning of the term ‘‘modify’’ is to make less
extreme. Merriam-Webster’s Collegiate Dictionary
(11th Ed. 2011). The meaning of the term ‘‘enlarge’’ is
to expand or make larger in scope. Id. Thus, in context,
modify must mean the opposite of enlarge, meaning
that the court is empowered to reduce or lessen the
conditions or period of probation.
It is well settled that the trial court maintains discre-
tion to supervise and, as appropriate, to enlarge or
modify the terms of a probationer’s probation. See State
v. Faraday, supra, 268 Conn. 180–81 (‘‘[w]hen the court
imposes probation, a defendant thereby accepts the
possibility that the terms of probation may be modified
or enlarged in the future pursuant to [General Statutes]
§ 53a-30’’ [internal quotation marks omitted]); State v.
Thorp, 57 Conn. App. 112, 117, 120, 747 A.2d 537 (trial
court’s approval of additional probation conditions
requested by the Office of Adult Probation was not
improper), cert. denied 253 Conn. 913, 754 A.2d 162(2000); General Statutes § 53a-30 (c) (‘‘[a]t any time
during the period of probation . . . after hearing and
for good cause shown, the court may modify or enlarge
the conditions’’).
In an earlier case, this court rejected an argument
by a criminal defendant similar to that which the state
urges upon us now. In State v. Crouch, 105 Conn. App.
693, 939 A.2d 632 (2008), the state urged this court to
uphold a trial court’s enlargement of a plea bargained
sentence. In Crouch, the defendant accepted a sentence
that included a period of incarceration, followed by
probation. Id., 695. After his release from custody, the
state initiated proceedings to add a new condition of
probation. The state sought to add sex offender evalua-
tion and treatment, if deemed necessary, as a probation-
ary condition. Id., 696. This proposed enlargement was
not part of the agreed upon disposition between the
defendant and the state. Id., 695–96.
On appeal, the defendant claimed that the court
improperly allowed a special condition of probation to
be added, in contravention of the terms of the plea
agreement. Id., 698. The state claimed that the enlarge-
ment was not improper because the additional condi-
tion was not expressly excluded from the terms of the
defendant’s probation.7 Id. We said in Crouch that if a
defendant accepts an offer of probation, he accepts
‘‘the possibility that the terms of his probation could
be modified or enlarged in the future in accordance with
the statutes governing probation.’’ (Internal quotation
marks omitted.) Id., 699. Implicit in our holding in
Crouch, which we make explicit today, is that when
the state enters into a plea agreement that includes a
period of probation, both the defendant and the state
do so with the understanding that the terms of probation
may be modified or enlarged in accordance with law,
and that such a modification might include a reduction.
In the present case, the state made its plea agreement
with the defendant with the implicit understanding that
the court might later exercise its statutory discretion
to modify the terms of the defendant’s probation. The
court acted within that statutory authority.8 For the
foregoing reasons, we reject the state’s argument that
the plea agreement divested the trial court of its author-
ity to modify or enlarge the conditions of the defen-
dant’s probation.
The judgment is reversed only with respect to the
denial of the state’s request for permission to appeal;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
1
It is clear from our review of the entire canvass and the sentence imposed
by the court that these last conditions were special conditions of probation.
2
At the hearing on April 20, 2012, the defendant amended the request he
made in his motion to the court. Rather than seeking to terminate the original
ten year probation imposed by the sentencing court, the defendant instead
asked the court to excise the two additional years added to his probation
in 2005. Additionally, the defendant asked the court to allow him to have
unsupervised contact with minors, to leave the country for a short period
of time and to exempt him from future registration as a sex offender,
pursuant to § 54-251 (b).
3
We note that with respect to its decision granting the exemption, the
trial court first told the state, ‘‘I’m prepared to be subject to review by a
higher authority by the Appellate or Supreme Court,’’ but then later denied
the state permission to appeal that very ruling.
4
This argument does not take into account that a defendant still on
probation may again find himself in the custody of the Commissioner of
Correction, if some violation of probation is alleged and he is unable to
post bond. In such a scenario, there is some purpose to notification of the
Department of Correction’s Victim Services Unit.
5
The state appears to have changed its position at oral argument, to the
extent it argued: ‘‘The court could change [the agreed upon sentence] at
the time of sentencing. But once the court accepted the disposition, it bound
the state, the defendant, and the court to the disposition.’’ We reject both
the state’s original and changed positions.
6
In sentencing the defendant, the court stated: ‘‘Ten years execution
suspended after the nine months, which is a mandatory minimum, ten years
[of] probation. In addition to the standard conditions of probation, the
defendant is to register as a sex offender for the ten years, sex evaluation
. . . treatment as deemed necessary . . . no unsupervised contact with
anyone under the age of sixteen, no contact directly or indirectly with the
victim.’’ (Emphasis added.)
7
The state has displayed a flexible approach toward modification or
enlargement of probation after a plea agreement has been accepted by the
court. In its brief to this court in State v. Crouch, the state argued: ‘‘[A]t
any time during an offender’s probation, a trial court may, after hearing and
for good cause shown, modify or enlarge the conditions of probation. . . .
Although a defendant is free to reject the offer of probation, if he accepts
probation, he must accept all its conditions, including the inherent possibil-
ity that his probation may be modified at any time under [General Statutes]
§ 53a-30.’’ (Citations omitted; emphasis added.) State v. Crouch, Appellate
Court Records & Briefs, October Term, 2007, State’s Brief, p. 18.
8
Similarly, under the facts of this case, the court’s decision to modify
probation is akin to the defendant receiving parole under General Statutes
§ 54-125. A defendant who has accepted a plea agreement that includes a
definite period of incarceration does not forfeit his statutory right to petition
the Board of Pardons and Paroles for parole. See State v. Andrews, 53 Conn.
App. 90, 95–96, 729 A.2d 232 (1999), aff’d 253 Conn. 497, 752 A.2d 49 (2000).
The fact that a grant of parole means that the defendant would be incarcer-
ated for less time than he bargained for does not vitiate the plea agreement.