State v. Orr ( 2020 )

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STATE v. ORR—CONCURRENCE
ELGO, J., concurring. I agree with the majority’s deci-
sion to affirm the judgment of the trial court. I write
separately, however, because I believe the constitu-
tional claim of the defendant, Anthony D. Orr, warrants
deeper examination as to whether he received sufficient
notice of the basis of the violation of probation proceed-
ing prior to its commencement. In this appeal, the defen-
dant contends that his right to due process was violated
when the trial court found that he had violated certain
criminal laws that were not alleged in either the viola-
tion of probation warrant or the accompanying affida-
vit. I agree with the defendant that this discrepancy
offends basic constitutional principles of due process
and thus satisfies the third prong of State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015). I nonetheless would conclude, under the partic-
ular facts of this case, that this constitutional violation
was harmless under Golding’s fourth prong. I therefore
respectfully concur with the majority’s decision to
affirm the judgment of the trial court.1
The following facts are relevant to my review of the
defendant’s due process claim. On August 27, 2014,
the defendant was released from incarceration for his
February 19, 2009 conviction of first degree robbery
and began his five year term of probation. On September
4, 2014, the defendant agreed to conditions of probation
that included, inter alia, that he (1) not violate any
criminal law of this state, (2) submits to urine testing,
and (3) reports to the Office of Adult Probation when
directed to do so.
On October 6, 2016, the defendant was arrested and
charged with possession of narcotics with intent to sell
in violation of General Statutes § 21a-278 (a), operation
of a drug factory in violation of General Statutes § 21a-
277 (c), interfering with a search in violation of General
Statutes § 54-33d, possession of narcotics with intent
to sell in violation of § 21a-278 (b), and possession of
marijuana in violation of General Statutes § 21a-279 (a)
(1). The defendant’s probation officer, Timothy Fenn,
thereafter applied for a violation of probation arrest
warrant, in which he alleged that the defendant (1)
failed to report to the Office of Adult Probation on
August 11 and December 15, 2015, (2) provided a urine
sample that tested positive for the presence of mari-
juana, and (3) violated the aforementioned criminal
laws underlying his October 6, 2016 arrest. The defen-
dant was arrested in November, 2016, and charged with
violation of probation under General Statutes § 53a-32.
During the probation revocation proceedings, the
state informed the court that, although it did not ‘‘intend
to put on facts from [the drug] case,’’ it was ‘‘not techni-
cally withdrawing’’ that portion of the violation of pro-
bation charge. The state represented that it was pursu-
ing the charges that the defendant failed to report and
that he provided a dirty urine sample (technical viola-
tions). The state, therefore, subsequently presented evi-
dence that the defendant failed to keep eight appoint-
ments with the Office of Adult Probation when directed
and provided a January 20, 2015 urine sample that tested
positive for the presence of marijuana. In response, the
defendant admitted to having used marijuana. The state
thereafter rested, and the evidentiary stage of the pro-
ceeding concluded.
Upon reconvening from a recess, the court stated
that, at that time, it ‘‘would be inclined to find that [the
defendant] violated his probation, but I also would be
disinclined to actually sentence him to any jail time.’’
The court further explained that, ‘‘if this is the extent
of the state’s violation, this is not a five-years-to-serve
violation. On the other hand, if I were convinced by a
preponderance of the evidence that the defendant was
committing crimes while he was on probation, then
I would probably give him the maximum.’’ The state
responded that it intended to present evidence during
the dispositional phase of the probation proceeding.2
The court acknowledged that it was not aware of the
details of the charges stemming from the defendant’s
October 6, 2016 arrest. It further explained that it would
provide the state with leave to open the violation of
probation hearing ‘‘if they wanted to include evidence
of another crime.’’ Senior Assistant State’s Attorney
Terence D. Mariani responded that, ‘‘given the court’s
comments,’’ the defendant should make his witnesses
available ‘‘to dispute the facts of the [case concerning
the October 6, 2016 drug charges].’’ Mariani stated that,
given the time and the court’s comments, the state
intended to present evidence concerning the defen-
dant’s October 6, 2016 arrest. The court thereafter
granted the state’s motion to open the evidentiary stage
of the proceeding over the defendant’s objection.
On June 16, 2017, the state presented evidence of
the drug charges underlying the defendant’s arrest on
October 6, 2016. The defendant testified in his own
defense and presented testimony from two witnesses.
Following the close of evidence, the court found that
the defendant had violated the condition of his proba-
tion that he report to the Office of Adult Probation.
It further found that the defendant had violated the
condition that he not violate any criminal laws. In mak-
ing the latter finding, the court noted that, ‘‘in testing
positive for marijuana, THC, there is circumstantial evi-
dence that the defendant violated the law as far as
possession of [a] controlled substance.’’ The court also
stated that, ‘‘the biggest finding I had here, though, is
[that] I do find that the defendant has violated the crimi-
nal law . . . in regard to conspiracy to sell narcotics,
§ 53a—I want to say 48 . . . .’’ The court further found
that the defendant violated § 21a-277 (a) for conspiracy
to possess with intent to sell and General Statutes § 21a-
267 (a) for possession of drug paraphernalia.3 The court
thus revoked the defendant’s probation and sentenced
him to five years of incarceration.
On appeal, the defendant claims that his right to fair
notice under the due process clause of the fourteenth
amendment to the federal constitution was violated
when the court found that he had violated criminal laws
that were not cited in the violation of probation warrant.
See State v. Andaz, 181 Conn. App. 228, 232–33, 186
A.3d 66, cert. denied, 329 Conn. 901, 184 A.3d 1214
(2018). In so arguing, the defendant emphasizes that
the violation of probation warrant charged him with
violations of §§ 21a-277 (c), 21a-278 (a) and (b), 21a-
279 (a) (1) and 54-33d. The defendant essentially con-
tends that the court was restricted to those alleged
violations during the probation revocation proceeding.
Because the court went beyond those violations and,
instead, found violations of other criminal statutes—
namely, §§ 21a-267 (a), 21a-277 (a) and 53a-48—the
defendant submits that his fourteenth amendment right
to fair notice was violated.
The majority sidesteps this thorny issue by disre-
garding the trial court’s explicit findings with respect
to §§ 21a-267 (a), 21a-277 (a) and 53a-48. Instead,
because the violation of probation warrant also alleged
a violation of § 21-279 (a), the majority concludes that
the court properly found that the defendant violated
that criminal law.4 See part I of the majority opinion.
While I do not disagree with that conclusion, I believe
that the defendant’s claim nevertheless merits fuller
consideration and analysis. On the facts of this case, I
respectfully would conclude that the defendant did not
receive constitutionally adequate notice with respect
to the court’s finding that he violated §§ 21a-267 (a),
21a-277 (a) and 53a-48.5
‘‘It is well established that [a] defendant is entitled to
due process rights in a probation violation proceeding.
Probation revocation proceedings fall within the protec-
tions guaranteed by the due process clause of the four-
teenth amendment to the federal constitution. . . .
Probation itself is a conditional liberty and a privilege
that, once granted, is a constitutionally protected inter-
est. . . . The revocation proceeding must comport
with the basic requirements of due process because
termination of that privilege results in a loss of liberty.’’
(Internal quotation marks omitted.) State v. Andaz,
supra, 181 Conn. App. 232–33. ‘‘[T]he minimum due
process requirements for revocation of [probation]
include written notice of the claimed [probation] viola-
tion, disclosure to the [probationer] of the evidence
against him, the opportunity to be heard in person and
to present witnesses and documentary evidence, the
right to confront and cross-examine adverse witnesses
in most instances, a neutral hearing body, and a written
statement as to the evidence for and reasons for [proba-
tion] violation.’’ (Internal quotation marks omitted.)
State v. Tucker, 179 Conn. App. 270, 280, 178 A.3d 1103,
cert. denied, 328 Conn. 917, 180 A.3d 963 (2018).
‘‘Although the due process requirements in a probation
revocation hearing are less demanding than those in a
full criminal proceeding, they include the provision of
written notice of the claimed violations to the defen-
dant.’’ (Footnote omitted; internal quotation marks
omitted.) State v. Andaz, supra, 233.
Our courts have provided some, albeit not compre-
hensive, guidance for evaluating whether a probationer
is afforded sufficient notice to pass constitutional mus-
ter. For instance, this court has stated that, when a
defendant is charged on one ground, i.e., a no contact
provision, the defendant cannot be found in violation
of probation on other uncharged grounds, including
criminal violations. See State v. Carey, 30 Conn. App.
346, 349, 620 A.2d 201 (1993) (‘‘[b]ecause a defendant
cannot be found in violation of probation on grounds
other than those with which he is charged, we will
disregard the [trial court’s] second finding [which was
that the defendant violated a criminal law as basis for
the revocation of his probation]’’), rev’d on other
grounds, 228 Conn. 487, 636 A.2d 840 (1994); see also
State v. Pierce, 64 Conn. App. 208, 215, 779 A.2d 233
(2001) (‘‘[t]he defendant rightly asserts that he cannot
be found in violation of probation on grounds other
than those with which he is charged’’).
This court also has concluded that, as in criminal
proceedings, a defendant receives sufficient notice of
the underlying charges when they are included in a
substitute information before the proceedings begin.
See State v. Hooks, 80 Conn. App. 75, 79–80, 832 A.2d
690 (defendant received sufficient notice because viola-
tion of probation warrant ‘‘specified the condition of
probation and the particular charges that formed the
basis of the charge of violation of probation’’ (emphasis
added)), cert. denied, 267 Conn. 908, 840 A.2d 1171
(2003); State v. Repetti, 60 Conn. App. 614, 618, 760
A.2d 964 (defendant received constitutionally sufficient
notice where substitute information was filed before
violation of probation hearing and specified particular
criminal law defendant was found to have violated),
cert. denied, 255 Conn. 923, 763 A.2d 1043 (2000).
Our courts have yet to directly address the question
of whether a defendant is provided constitutionally suf-
ficient notice when he or she is found to have violated
particular criminal laws that were not alleged in the
violation of probation warrant. Despite a lack of pointed
discussion on this issue, I believe that this question
must be answered in the negative.
In State v. Pierce, supra, 64 Conn. App. 211–12, the
defendant was arrested while on probation for burglary
and possession of burglar’s tools near a residence that
he attempted to burglarize. Id., 211. Two months later,
the defendant was arrested on a warrant for violating
the terms of his probation. Id. The affidavit in that
warrant application referred to the defendant’s arrest
for burglary and possession of burglar’s tools. Id. In
appealing from the revocation of his probation, the
defendant argued, in part, that he did not receive notice
of any basis for the revocation of probation other than
the burglary charge. Id., 214. This court rejected that
argument. In doing so, it noted ‘‘the fact that [the defen-
dant] had been arrested on a warrant charging both
burglary and the misdemeanor possession of burglar’s
tools.’’ Id., 215. It further emphasized that, between
the two charges highlighted in the warrant and the
testimony offered at trial concerning the entire incident,
‘‘the defendant was made aware, both before and during
the hearing, of the evidence that he had been in posses-
sion of burglar’s tools.’’ Id. In reaching that determina-
tion, the court acknowledged that the defendant could
not ‘‘be found in violation of probation on grounds other
than those with which he is charged. . . . The defen-
dant, however, clearly had been charged with both bur-
glary and possession of burglar’s tools and, thus, he
had notice of the charges both before and during the
hearing.’’ (Citation omitted.) Id. Therefore, Pierce
stands for the proposition that a defendant receives
constitutionally sufficient notice when the specific
crimes underlying the violation of probation charge are
contained in the warrant for violation of probation.
Similarly, in Hooks, the defendant claimed that he
received constitutionally deficient notice because the
state failed to specify the manner in which he violated
the condition of his probation that he not violate a
criminal law. State v. Hooks, supra, 80 Conn. App. 79.
In rejecting that claim, this court noted that ‘‘the condi-
tion of the defendant’s probation was that he would
not violate any criminal law; the manner in which he
violated that condition was through the commission of
criminal offenses. Section 53a-32 (a) requires the state
to inform the defendant of those charges once before
the court. The arrest warrant application . . . speci-
fied the condition of probation and the particular
charges that formed the basis of the charge of violation
of probation. At both the defendant’s arraignment . . .
and the probation revocation hearing . . . the state
reiterated those charges. Those recitations satisfied the
demands of § 53a-32 (a).’’ (Emphasis added.) Id., 80.
Accordingly, both Pierce and Hooks strongly suggest
that a defendant receives adequate notice prior to a
probation revocation hearing when the state provides
notice of both the condition he is alleged to have vio-
lated and the particular charges that form the basis of
that condition’s violation.6 That precedent indicates that
it is not enough for the state to apprise a defendant
that he or she is alleged to have violated the condition
to not violate any criminal law. Instead, the defendant
must be afforded notice of the specific crime that he
or she allegedly has transgressed and which forms the
basis of the revocation of his or her probation.7
That conclusion comports with fundamental princi-
ples of due process. Although probation revocation pro-
ceedings are ‘‘akin to a civil proceeding’’; State v. Davis,
229 Conn. 285, 295, 641 A.2d 370 (1994); I believe that
probationers, like defendants in criminal proceedings,
must receive notice of the particular criminal offenses
that he or she is alleged to have violated if the warrant
is predicated on the charge that the defendant violated
the condition to not break any criminal law. See Cole
v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514, 92 L. Ed.
644 (1948) (‘‘[n]o principle of procedural due process is
more clearly established than that notice of the specific
charge, and a chance to be heard in a trial of the issues
raised by that charge, if desired, are among the constitu-
tional rights of every accused in a criminal proceeding,
in all courts, state or federal’’). Otherwise, a defendant
is stripped of the ability to proffer evidence or assert
any affirmative defenses in his or her effort to challenge
the state’s burden of establishing by a preponderance
of the evidence all elements of the particular crime.
Without knowledge of the precise offenses he or she
is alleged to have committed, a defendant is left with
no meaningful opportunity to defend and is precluded
from adducing evidence that would conclude the case
in his or her favor.8 See Jackson v. Virginia, 443 U.S.
307, 314, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (‘‘[a]
meaningful opportunity to defend, if not the right to
trial itself, presumes . . . that a total want of evidence
to support a charge will conclude the case in favor of
the accused’’).
In the present case, it is evident that the defendant
did not receive adequate notice of the specific crimes
that formed, in part, the basis of the court’s determina-
tion that he violated the condition to not break any
criminal law. The violation of probation warrant did
not allege that the defendant violated §§ 21a-267 (a),
21a-277 (a)9 and 53a-48, yet the court found him to have
violated those provisions.10 The court thus found the
defendant in violation of his probation due to criminal
offenses for which he never was provided notice by the
state. See Jackson v. Virginia, supra, 443 U.S. 314. At
the very least, as in all administrative proceedings, the
defendant was entitled to be on notice of the particular
legal theory that would jeopardize his continued proba-
tion. See Pennsylvania Board of Probation & Parole
v. Scott, 524 U.S. 357, 364, 118 S. Ct. 2014, 141 L. Ed. 2d
344 (1998) (noting the ‘‘administrative nature of parole
revocation proceedings’’); Goldstar Medical Services,
Inc. v. Dept. of Social Services, 288 Conn. 790, 823, 955
A.2d 15 (2008) (‘‘[d]ue process [in the administrative
hearing context] requires that the notice given must
. . . fairly indicate the legal theory under which such
facts are claimed to constitute a violation of the law’’).
For that reason, I would conclude that the defendant’s
right to receive notice, as guaranteed by the due process
clause of the fourteenth amendment to the United
States constitution, was violated in the present case.
See State v. Davis, supra, 229 Conn. 294.
Notwithstanding this conclusion, I would further con-
clude that the constitutional violation was harmless
under the particular facts of this case. Although the
warrant did not specify §§ 21a-267 (a), 21a-277 (a) and
53a-48 as underlying the charge that the defendant vio-
lated the condition that he not violate any criminal law,
it did allege that the defendant possessed marijuana in
violation of § 21a-279 (a) (1). The court expressly found
that the defendant violated this criminal statute, citing
evidence that he tested positive for THC as circumstan-
tial evidence of his possession of marijuana. As the
majority opinion notes, this specific charge was detailed
in the warrant and was sufficient to support the court’s
finding that the defendant violated the condition of his
probation that he not violate a criminal law. See parts
I and IV of the majority opinion. Thus, having found
that the defendant violated a condition of his probation,
the court was entitled to revoke the defendant’s proba-
tion on this basis alone.
Furthermore, the court was required to consider ‘‘the
whole record’’ in deciding in the second stage disposi-
tional factors of whether to ‘‘continue or revoke the
sentence of probation . . . [and] . . . require the
defendant to serve the sentence imposed or impose any
lesser sentence.’’ (Emphasis added; internal quotation
marks omitted.) State v. Megos, 176 Conn. App. 133,
148, 170 A.3d 120 (2017); see also General Statutes § 53a-
32 (d) (‘‘[n]o such revocation [of probation] shall be
ordered, except upon consideration of the whole
record’’ (emphasis added)). The court, therefore, was
entitled to consider not only the defendant’s violation
of the conditions of his probation but the entire record
in revoking his probation and sentencing him to incar-
ceration. See State v. Miller, 83 Conn. App. 789, 802–803,
851 A.2d 367 (in holding that trial court did not abuse
its discretion when it revoked defendant’s probation,
reviewing court noted that trial court ‘‘had before it the
defendant’s long criminal history’’ and evidence of ‘‘his
cavalier attitude about his probation’’), cert. denied, 271
Conn. 911, 859 A.2d 573 (2004). Here, the court had
before it evidence of the facts underlying the defen-
dant’s arrest on October 6, 2016, including testimony
from Detective Eric Medina, Officer Keith Shea, and
Officer Mark Santopietro, all of whom were involved
in his arrest on that date.11 The defendant’s rebuttal
evidence, which included testimony from himself and
two of his witnesses, was not credited by the court.
Although it is the state’s obligation to prove the harm-
lessness of a constitutional violation; see State v. Gold-
ing, supra, 213 Conn. 240; that burden is satisfied in
light of the record before us. I, therefore, respectfully
agree with the majority that the judgment of the trial
court should be affirmed.
1
I agree with and join the majority opinion in all other respects.
2
As the majority opinion explains, ‘‘revocation of probation hearings,
pursuant to § 53a-32, are comprised of two distinct phases, each with a
distinct purpose. . . . In the evidentiary phase, [a] factual determination
by a trial court as to whether a probationer has violated a condition of
probation must first be made. . . . In the dispositional phase, [i]f a violation
is found, a court must next determine whether probation should be revoked
because the beneficial aspects of probation are no longer being served.’’
(Internal quotation marks omitted.) State v. Maurice M., 303 Conn. 18, 25–26,
31 A.3d 1063 (2011).
3
The court additionally noted that the defendant ‘‘has admitted to violating
[§ 21-279 (a)] as far as possession of cocaine, but that was not alleged as
a basis [for his violation of the condition that he not violate any criminal
law]. So, while I do believe the [state has] proved that, I’m not really relying
on that as a basis for my findings.’’
4
In addition, the majority opinion determines that the court properly
found the defendant to have violated the condition that he report to the
Office of Adult Probation when requested and that he provide a clean
urine test.
5
As noted by the majority, the defendant seeks review of this unpreserved
claim under State v. Golding, supra, 213 Conn. 213, which holds that ‘‘a
defendant can prevail on a claim of constitutional error not preserved at
trial only if all of the following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the defendant of a fair trial;
and (4) if subject to harmless error analysis, the state has failed to demon-
strate harmlessness of the alleged constitutional violation beyond a reason-
able doubt.’’ (Emphasis in original; footnote omitted.) Id., 239–40. Thus, my
analysis focuses on the third and fourth prongs of Golding. See State v. Ayala,
324 Conn. 571, 598–99, 153 A.3d 588 (2017) (noting that when defendant’s
constitutional right to notice is violated, state must prove constitutional
error is harmless beyond reasonable doubt); State v. Jordan, 132 Conn.
App. 817, 826, 33 A.3d 307 (due process violation for improper notice of
charges is of constitutional magnitude, requiring state to prove harmlessness
beyond reasonable doubt), cert. denied, 304 Conn. 909, 39 A.3d 1119 (2012).
6
As the District Court of Appeal of Florida recently held, ‘‘the circuit
court found [the defendant] in violation of condition five of his probation
for committing the new law offense of assault. However, the [s]tate’s affidavit
of violation of probation did not allege that [the defendant] had committed
an assault. A trial court is not permitted to revoke probation on conduct
not charged in the affidavit of revocation. [R]evoking an individual’s proba-
tion for conduct not alleged in the charging document deprives the individual
of due process and constitutes fundamental error.’’ (Internal quotation marks
omitted.) Jackson v. State, 290 So. 3d 1037, 1038 (Fla. App. 2020) (per
curiam).
7
Indeed, it appears that the trial court in this case also understood that
the defendant could not be found to have violated a particular criminal
statute that was not alleged in the violation of probation warrant. As noted
previously, the court declined to find that the defendant violated § 21-279
(a) for possessing cocaine—despite the defendant’s having admitted to that
offense—because that allegation was not made in the violation of probation
warrant. See footnote 3 of this concurring opinion. As such, this explicit
acknowledgment supports the majority’s belief that the court did not intend
to find the defendant in violation of criminal laws that were not alleged in
the violation of probation warrant. See footnote 16 of the majority opinion.
8
A simple hypothetical highlights my concerns. For instance, assume the
warrant in the present case failed to allege that the defendant had violated
§ 21a-278 (a)—which proscribes the sale of drugs by a person who is not
drug-dependent—in violation of the condition that he not violate any criminal
law. If the court were to subsequently find that the defendant violated that
statute, the defendant would not have been on notice to proffer evidence
in his defense that he was a drug-dependent person and, therefore, was
incapable of breaching that criminal law. This scenario illustrates why a
failure to give notice of the specific criminal laws a probationer is alleged
to have violated contravenes the fundamental principles of the right to
notice under the due process clause.
9
It is worth noting the similarities between §§ 21a-277 (a) (1) and 21a-
278 (a) (1). The former statute provides in relevant part: ‘‘No person may
manufacture, distribute, sell, prescribe, dispense, compound, transport with
the intent to sell or dispense, possess with the intent to sell or dispense,
offer, give or administer to another person, except as authorized in this
chapter, any controlled substance that is a (A) narcotic substance, or (B)
hallucinogenic substance.’’ General Statutes § 21a-277 (a) (1).
General Statutes § 21a-278 (a) (1) provides that ‘‘[n]o person may manufac-
ture, distribute, sell, prescribe, dispense, compound, transport with the
intent to sell or dispense, possess with the intent to sell or dispense, offer,
give or administer to another person, except as authorized in this chapter, (A)
one or more preparations, compounds, mixtures or substances containing
an aggregate weight of (i) one ounce or more of heroin or methadone, or
(ii) one-half ounce or more of cocaine or cocaine in a free-base form, or
(B) a substance containing five milligrams or more of lysergic acid diethylam-
ide. The provisions of this subdivision shall not apply to a person who is,
at the time of the commission of the offense, a drug-dependent person.’’
Both statutes proscribe the possession of narcotic substances with the
intent to sell. Section 21a-278 (a) (1), however, requires that the defendant
be in possession of particular narcotics and in threshold amounts. It further
allows a defendant to assert his or her drug-dependent status at the time
of commission as an affirmative defense to avoid liability under the statute.
See, e.g., State v. Ray, 290 Conn. 602, 623–24, 966 A.2d 148 (2009) (holding
that drug dependency language in § 21a-278 (b) ‘‘effectively functions as an
affirmative defense’’). In contrast, § 21a-277 (a) (1) does not require specific-
ity of the narcotic substance, a threshold amount of that narcotic substance,
or provide for a drug-dependency affirmative defense.
10
Nothing in the record indicates that the state ever filed a substitute
information alleging violations of §§ 21a-267 (a), 21a-277 (a) and 53a-48. Cf.
State v. Repetti, supra, 60 Conn. App. 618. In addition, although the state
ultimately elicited from the defendant on cross-examination that he had a
daily cocaine habit, it does not appear that the defendant asserted his drug
dependency as a defense to his drug charges. Ironically, the court, observing
that the defendant ‘‘admitted to violating [§ 21-279 (a)] as far as possession
of cocaine,’’ concluded that, because it ‘‘was not alleged as a basis [for his
violation of the condition that he not violate any criminal law],’’ it made
clear it would not rely on that evidence as a basis for the violation. See
footnote 3 of this concurring opinion.
11
That the court indicated it would not sentence the defendant to incarcer-
ation on the basis of the technical violations alone is ultimately of no
consequence because evidence of the defendant’s criminal activity was
clearly relevant to the court in considering whether the beneficial aspects
of probation were being served. Initially, the court acknowledged that it
did not know the details of the defendant’s criminal case. The state explained
that evidence of the defendant’s possession and sale of narcotics—coupled
with his criminal history—indicates ‘‘that [he is] not the kind of person who
should be on probation. . . . [The defendant] goes out, commits a robbery,
does a substantial jail sentence, gets out, starts using drugs and starts selling
drugs. That’s not a person who belongs on probation anymore, unfortunately
for [the defendant].’’ The court ultimately ‘‘agree[d] with the state’’ on this
point. Thus, whether the state offered the evidence concerning the defen-
dant’s October 6, 2016 arrest for purposes of proving the violation or in
support of the disposition as it originally intended, the court’s remarks make
clear that it considered the evidence for disposition.