State v. Denya , 149 Conn. App. 714 ( 2014 )

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STATE OF CONNECTICUT v. ROBERT DENYA
(AC 34406)
Lavine, Sheldon and Bishop, Js.
Argued February 20—officially released April 22, 2014
(Appeal from Superior Court, judicial district of
Hartford, geographical area number fourteen,
Mullarkey, J.)
David R. Kritzman, with whom, on the brief, was
Alexa J. P. Lindauer, for the appellant (defendant).
Bruce R. Lockwood, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, state’s
attorney, and Anne Mahoney, senior assistant state’s
attorney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Robert Denya, appeals
from the judgment of the trial court denying his motion
to modify probation pursuant to General Statutes § 53a-
30 (c).1 The defendant contends that there was ‘‘good
cause’’ to modify his probation and that the court
abused its discretion when it denied his motion. We
disagree and affirm the judgment of the trial court.
It is unnecessary for the purposes of this appeal to
recount the details of the crimes for which the defen-
dant was convicted. It is sufficient to note that in
December, 1998, the defendant pleaded guilty to multi-
ple counts of risk of injury to a child in violation of
General Statutes § 53-21 and sexual assault in the fourth
degree in violation of General Statutes § 53a-73a in con-
nection with the molestation of his autistic niece. See
State v. Denya, 294 Conn. 516, 524, 986 A.2d 260 (2010).
The court, Byrne, J., accepted the defendant’s pleas
and sentenced him to ten years incarceration, execution
suspended after three years, followed by ten years pro-
bation with special conditions, including lifetime regis-
tration as a sex offender and no contact with children
under the age of sixteen. The defendant served three
years in prison before being released on probation. On
October 1, 2004, the court, Mullarkey, J., found that
the defendant had violated the terms of his probation
on at least two separate occasions and that the defen-
dant had lied about those incidents to his probation
officer. In its disposition of the probation violation, the
court stated, ‘‘I am going to reopen the original sen-
tence, reimpose the original sentence of ten years, sus-
pended after three.’’ The court also increased the period
of probation from ten years to thirty-five years and
added the special condition that the defendant be elec-
tronically monitored at his own expense.2
On October 26, 2010, the defendant filed a motion to
modify his probation pursuant to § 53a-30 (c). Following
a hearing, the court denied the motion, and in its memo-
randum of decision highlighted the fact that the defen-
dant had lied to his probation officer in the past and
proved to be deceptive during his probationary period.
The court noted that the defendant’s probation violation
had gone undetected by his probation officer and that
his violation was not discovered until the victim’s family
hired a private investigator to follow him and monitor
his impermissible contacts with children. The court
noted that, ‘‘[e]ven the excellent probation officer with
a small caseload in the sex offender unit has been
unable to detect the defendant’s repeated and blatant
violations.’’3
On appeal, the defendant claims that the court abused
its discretion when it denied his motion to modify his
probation. Specifically, the defendant argues that the
court should have (1) reduced the length of his proba-
tion from thirty-five years to ten years and (2) discon-
tinued electronic monitoring. We are not persuaded.
It is well settled that the denial of a motion to modify
probation will be upheld so long as the trial court did
not abuse its discretion. State v. Denya, supra, 294
Conn. 533 n.9. On appeal, a defendant bears a heavy
burden because ‘‘every reasonable presumption should
be given in favor of the correctness of the court’s rul-
ing.’’ (Internal quotation marks omitted.) State v. Pres-
ton, 286 Conn. 367, 377, 944 A.2d 276 (2008). The mere
fact that the denial of a motion to modify probation
leaves a defendant facing a lengthy probationary period
with strict conditions is not an abuse of discretion.
Rather, ‘‘[r]eversal is required only where an abuse of
discretion is manifest or where injustice appears to
have been done.’’ (Internal quotation marks omitted.)
Id.Section 53a-30 (c) provides that a court may modify
a defendant’s probation for ‘‘good cause . . . .’’ The
defendant contends that the court abused its discretion
when it failed to find ‘‘good cause’’ to modify his proba-
tion. Specifically, the defendant cites evidence demon-
strating that he had rehabilitated and that his
probationary period was disproportionate to those of
other similarly situated defendants.
In this case, the defendant was convicted of multiple
counts of risk of injury to an autistic child. He was
incarcerated, and after being released was found to
have violated his probation. Consistent with General
Statutes (Rev. to 2003) § 53a-29, the court imposed the
maximum probationary period allowable by law, thirty-
five years. Despite introducing evidence suggesting that
the defendant has rehabilitated, he has not demon-
strated how the court abused its discretion by refusing
to modify his probation. The decision to grant a motion
to modify probation is a matter that rests in the sound
discretion of the trial court; it is not relevant to our
review that the defendant might have persuaded a dif-
ferent judge to reach a contrary result. On the basis of
our review of the record, we cannot say that the court
abused its discretion.
The defendant also contends that that court erred by
not removing the special condition that the defendant
be subject to electronic monitoring. Given that such
monitoring was lawfully imposed, and in light of the
court’s determination that the defendant previously has
been successful in deceiving his probation officer, we
cannot say that the court abused its discretion.
The judgment is affirmed.
1
General Statutes § 53a-30 (c) provides in relevant part: ‘‘At any time
during the period of probation or conditional discharge, after hearing and
for good cause shown, the court may modify or enlarge the conditions,
whether originally imposed by the court under this section or otherwise,
and may extend the period, provided the original period with any extensions
shall not exceed the periods authorized by section 53a-29. . . .’’ (Empha-
sis added.).
2
The court ordered that ‘‘the defendant must submit to and pay for any
electronic/digital monitoring as deemed appropriate by the office of adult
probation . . . .’’ (Emphasis added; internal quotation marks omitted.) State
v. Denya, supra, 294 Conn. 522. On December 15, 2005, the Office of Adult
Probation discontinued electronically monitoring the defendant. In
response, the state filed a ‘‘motion to modify probation’’ in which it requested
that the court resume the electronic monitoring. After a hearing, Judge
Mullarkey issued a corrected order in which he directed the probation office
to electronically monitor the defendant for the duration of his probationary
period. Judge Mullarkey noted that the previous order was inaccurate insofar
as the ‘‘court did not sanction or intend that [probation] monitor . . . the
[defendant] with any lesser level of monitoring than provided by [current
technology]’’ and that the court intended to give flexibility to ‘‘accommodate
technological developments . . . .’’ (Internal quotation marks omitted.)
State v. Denya, supra, 524–25.
The defendant appealed, and our Supreme Court upheld the clarified
order, concluding that the trial court properly clarified its order and that
the court ‘‘intended to require that the defendant submit to electronic moni-
toring for the duration of his probationary period.’’ The Supreme Court
noted, ‘‘[t]here is nothing in the record of the proceeding at which the trial
court issued its [original order] to suggest that the court’s [clarified order]
was arbitrary or otherwise unreasonable.’’ Id., 533.
3
The court also stated: ‘‘[A]fter release from prison the defendant started
jogging in the victim’s neighborhood . . . and visited the victim’s place of
employment . . . . This conduct smacks of deception and obsession, [and]
is the most important factor in the length of the defendant’s probation and
the [electronic monitoring] requirement.’’
The defendant argues that this statement, which appears in the memoran-
dum of decision denying the defendant’s motion to modify probation, is not
supported by the evidence adduced at the previous probation violation
hearing. He argues that these incidents were only referenced by the counsel
for the victim’s family during the sentencing phase of the probation violation
proceeding. We note that a probation violation hearing has two phases, an
evidentiary phase during which the court determines whether a condition
of probation has been violated, and a dispositional phase during which a
sentence is imposed. Here, the defendant has included a record of the
dispositional phase, but has not provided us with a record of the evidentiary
phase. Without a transcript of the evidentiary phase we are unable to deter-
mine whether the inaccuracy claimed by the defendant exists. Accordingly,
we cannot review this claim.