State v. Han ( 2020 )

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STATE OF CONNECTICUT v. MINH ANH HAN
(AC 43016)
Bright, C. J., and Alvord and Cradle, Js.
Syllabus
The defendant, who had been charged with the crime of sexual assault in
the fourth degree and had been granted permission to participate in
the statutory (§ 54-56e) pretrial diversionary program of accelerated
rehabilitation, appealed to this court after the trial court terminated the
order of accelerated rehabilitation. At a hearing on additional conditions
proposed for the defendant’s participation in the accelerated rehabilita-
tion program, the court concluded that the circumstances of the case
were too serious based, inter alia, on the defendant’s participation in a
fraternal organization and, sua sponte, terminated his participation in
the accelerated rehabilitation program. Held:
1. Contrary to the state’s claim, the trial court’s ruling terminating the
defendant’s participation in the accelerated rehabilitation program was
a final judgment for the purposes of appeal; consistent with the ordinary
meaning of the plain language of the court, this court concluded that
the ruling, in which the court stated it was going to terminate the
defendant’s participation in the accelerated rehabilitation program, con-
stituted a termination of the defendant’s participation in the program
under § 54-56e and not a reconsideration and denial of the program.
2. The trial court abused its discretion in terminating the defendant’s partici-
pation in the accelerated rehabilitation program: the defendant was not
afforded notice that the court intended to terminate his participation
in the program, the court did not allow the defendant to be heard on
the issue of termination and the defendant did not have the opportunity
to present evidence regarding successful compliance with the program;
moreover, the court improperly based its decision to terminate the
defendant’s participation on extrajudicial information related to a frater-
nal organization in which the defendant participated, the defendant was
not informed of the source of the information or given any opportunity
to review or to rebut it, and the mere allegation of concerning activities
of the fraternal organization without additional evidence was an insuffi-
cient basis to terminate the defendant’s participation in the program.
Argued September 15—officially released December 1, 2020
Procedural History
Substitute information charging the defendant with
the crime of sexual assault in the fourth degree, brought
to the Superior Court in the judicial district of Hartford,
geographical area number twelve, where the court,
McNamara, J., granted the defendant’s application for
accelerated rehabilitation; thereafter, the court, McNa-
mara, J., terminated the order of accelerated rehabilita-
tion, and the defendant appealed to this court. Reversed;
further proceedings.
Trent A. LaLima, with whom, on the brief, was
Hubert J. Santos, for the appellant (defendant).
Kathryn W. Bare, senior assistant state’s attorney,
with whom, on the brief, were Gail P. Hardy, former
state’s attorney, and Adam Scott, supervisory assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Minh Anh Han, appeals
from the judgment of the trial court terminating1 his
participation in the accelerated rehabilitation program.
On appeal, the defendant claims that the trial court
abused its discretion by sua sponte terminating his par-
ticipation in the program.2 We conclude that the court
abused its discretion in terminating the defendant’s par-
ticipation in the accelerated rehabilitation program.
Accordingly, we reverse the judgment of the trial court.
The following facts and procedural history are rele-
vant to our resolution of this appeal. On May 12, 2017,
the defendant was arrested and charged with three
counts of sexual assault in the second degree in viola-
tion of General Statutes § 53a-71 (a) (7), and one count
of sexual assault in the fourth degree in violation of
General Statutes § 53a-73a (a) (5).3 On May 15, 2018,
the state filed a substitute information. The state with-
drew the second degree sexual assault charges4 and
charged the defendant only with one count of sexual
assault in the fourth degree. On that date, the defendant
applied for admission to the accelerated rehabilitation
program pursuant to General Statutes § 54-56e.5
On June 5, 2018, the trial court, Oliver, J., denied the
defendant’s application for the accelerated rehabilita-
tion program after concluding that the allegations
against the defendant were too serious and that it could
not find that the defendant would probably not offend
again in the future. On November 29, 2018, the trial
court, McNamara, J., reconsidered the defendant’s
application for accelerated rehabilitation and granted
it. The court imposed the maximum statutory period
of supervision, two years, and the following conditions
on the defendant: ‘‘[1] obey all state and federal laws
. . . [2] comply with any other counseling and treat-
ment deemed appropriate by [the Court Support Ser-
vices Division, Office of Adult Probation (probation)]
and continue with treatment . . . [3] have no contact
with [the] victim . . . and [4] after a period of [acceler-
ated rehabilitation and with] the approval of [probation]
. . . may [travel] overseas for medical work.’’
By letter dated March 8, 2019, a probation officer,
Amy Gile, sent a letter to the court, copying the state’s
attorney office and defense counsel, in which she
asserted the following: Upon the defendant’s admission
to the program, probation referred the defendant for a
sex offender evaluation. On January 28, 2019, he was
‘‘deemed appropriate’’ for sex offender treatment at
The Connection, a center for the treatment of problem
sexual behavior. The evaluator at The Connection
assessed the defendant as a ‘‘moderate’’ risk for reof-
fending. On February 14, 2019, the defendant signed a
treatment agreement with The Connection, which
included, inter alia, a condition that he ‘‘not [act] in a
position of power over others.’’
Thereafter, the defendant disclosed to probation that
he was a participant in the ManKind Project. Probation
found that ‘‘the Man[K]ind Project is a global network
of nonprofit organizations focused on modern male ini-
tiation, self-awareness, and personal growth.’’ The
defendant was participating in ManKind Project online
groups and hosting meetings at his home, and he had
submitted an ‘‘action plan’’ to probation requesting that
he be allowed to attend out of state retreats with the
ManKind Project, including one in New York. Probation
contacted the leader of the New York retreat and
learned that the defendant would attend the retreat as
a ‘‘staff man’’ and that he potentially would be in a
leadership position over other participants.
In her March 8, 2019 letter to the court, Officer Gile
articulated a concern that the defendant’s ‘‘self-dis-
closed participation in the ManKind Project place[s]
him in a power . . . position over vulnerable mem-
bers.’’ Probation then requested that the court impose
sixteen additional conditions as part of the defendant’s
accelerated rehabilitation program and require him to
sign a computer access agreement ‘‘in order to effec-
tively supervise the [defendant’s] [accelerated rehabili-
tation] and properly enforce The Connection [t]reat-
ment [a]greement.’’6
On March 26, 2019, over the defendant’s objection,
the court entered a bond condition of no contact with
the ManKind Project but did not rule on probation’s
requested additional accelerated rehabilitation condi-
tions. On May 3, 2019, the defendant filed a written
objection to some, but not all, of the additional condi-
tions proposed by probation in the March letter as
‘‘unnecessary, unreasonable, overly burdensome, and
unrelated to the underlying alleged offense.’’7 The defen-
dant stated that he ‘‘[did] not object to [probation’s]
proposed condition requiring preapproval to attend
ManKind Project retreats and barring him from
attending as a staff member.’’
On May 15, 2019, defense counsel, a prosecutor, and
Officer Gile appeared before the court, McNamara, J.,
pursuant to probation’s request for the additional condi-
tions. At the hearing, the court stated that it would like
to hear from Officer Gile as to why the conditions were
necessary. The court asked Officer Gile: ‘‘And did you
find out anything else about this ManKind Project? It
was presented to me that this was a project where
people—men would get together and they’d give—be
given opportunities for growth, and for leadership, and
to set them on the right path. Did you discover that
this is, in fact, what it is?’’ Officer Gile responded: ‘‘Well,
based on talking to [the leader of the New York ManKind
Project retreat], he did say it was individuals that were
trying to [achieve] self-growth, change their lives, bet-
ter themselves.’’
The state concluded its argument by asking that the
court impose the additional conditions requested by
probation: ‘‘[T]he allegations . . . are serious, but,
once again, not so serious that Your Honor couldn’t
find that [the defendant] shouldn’t have a shot at having
them dismissed. So . . . I’d ask that Your Honor
impose the conditions so we can keep . . . a good eye
on the defendant, and make sure he is somebody who
will, in fact, have earned his dismissal in the end.’’
Defense counsel rebutted by asking the court ‘‘to con-
sider the conditions individually, rather than all of them
being granted.’’
At the conclusion of the hearing, the court ruled as
follows: ‘‘You know, the more I read about this case and
the more I looked into the ManKind Project, I believe
I was told certain things—I was led astray as to what
the ManKind Project was. I did do research on the
ManKind Project. . . . As I view [probation’s] require-
ments, I realize that this [case] is by far too serious
for accelerated rehabilitation. As you know the court
granted accelerated rehabilitation with my discretion,
and now I’m hearing that you don’t like the conditions
and you’re going to object to certain conditions. Well,
I can resolve that pretty easily. And I’m going to do
that today. . . . I’m going to terminate his accelerated
rehabilitation. [The defendant] does not want to follow
the agreements, he does not want to follow the require-
ments. I feel this is a by far more serious case than I
was led to believe. Especially the more I heard about
the ManKind Project. . . . [T]he ManKind Project, as
far as I know, may be a fraternal organization, but it
also has some interesting idiosyncrasies, where parties
go and they’re subjected to more like a [boot camp like]
atmosphere where parties are told not to wear any
clothing when they’re there. So I am going to terminate
the accelerated rehabilitation, I’m going to place this
back on [the] pretrial docket. What date would you like
to come back and we can discuss this?’’
In response to defense counsel’s clarification that the
defendant was ‘‘willing to abide by any condition’’ that
the court may impose, the court stated: ‘‘It’s too serious.
After what I’ve learned about the ManKind Project and
hearing [from probation] and reviewing [probation’s]
report . . . it’s by far too serious for . . . accelerated
rehabilitation. I made a mistake. I was led astray by
certain facts which has bothered me since this program
was granted. I thought it would be all right, but I’m
more convinced now that it would not be the right thing
to do with this case.’’8 Accordingly, the court terminated
the defendant’s participation in the accelerated rehabili-
tation program and returned the case to the pretrial
docket. This appeal followed.9
I
At the outset, we address the state’s argument that
the trial court’s ruling is not a final judgment for the
purposes of appeal and, thus, this court lacks jurisdic-
tion to consider it. The defendant characterizes the trial
court’s ruling as a ‘‘termination’’ of his participation in
the accelerated rehabilitation program. The state con-
tends that the trial court’s ruling is not a termination,
but a ‘‘reconsideration’’ of its decision granting the
defendant’s participation in the accelerated rehabilita-
tion program and a ‘‘denial’’ of the application. As such,
the state argues that the trial court’s ruling is not a final
judgment for the purposes of appeal, and, therefore,
this court should dismiss the appeal for lack of jurisdic-
tion. We agree with the defendant that the trial court’s
ruling constituted a termination of his participation in
the accelerated rehabilitation program and, accord-
ingly, that it is a final judgment for the purposes of
appeal.
‘‘Unless otherwise provided by law, the jurisdiction
of our appellate courts is restricted to appeals from
final judgments.’’ Krausman v. Liberty Mutual Ins. Co.,
195 Conn. App. 682, 687, 227 A.3d 91 (2020); see also
General Statutes §§ 51-197a and 52-263; Practice Book
§ 61-1. ‘‘An order of the court . . . terminating the par-
ticipation of a defendant in [the accelerated rehabilita-
tion] program [is] a final judgment for purposes of
appeal.’’ General Statutes § 54-56e (f). Conversely, an
order of the court granting or denying a defendant’s
application for the accelerated rehabilitation program
is not a final judgment for purposes of appeal. See State
v. Spendolini, 189 Conn. 92, 96, 454 A.2d 720 (1983);
State v. Angelo, 25 Conn. App. 235, 239, 594 A.2d 24,
cert. denied, 220 Conn. 911, 597 A.2d 335 (1991). There-
fore, this court must determine whether the trial court’s
ruling is a termination of the defendant’s participation
in the accelerated rehabilitation program or a reconsid-
eration and denial of the program.
‘‘It is well established that the construction of a judg-
ment presents a question of law over which we exercise
plenary review.’’ Bauer v. Bauer, 308 Conn. 124, 131,
60 A.3d 950 (2013). ‘‘To determine the meaning of a
judgment, we must ascertain the intent of the court from
the language used and, if necessary, the surrounding
circumstances.’’ (Internal quotation marks omitted.)
Pasco Common Condominium Assn., Inc. v. Benson,
192 Conn. App. 479, 516, 218 A.3d 83 (2019). ‘‘In constru-
ing a trial court’s judgment, [t]he determinative factor
is the intention of the court as gathered from all parts
of the judgment. . . . Effect must be given to that
which is clearly implied as well as to that which is
expressed. . . . The judgment should admit of a con-
sistent construction as a whole.’’ (Internal quotation
marks omitted.) Bauer v. Bauer, supra, 131.
During the May 15, 2019 hearing, the court clearly
expressed its intent when it twice stated that it was
‘‘going to terminate’’ the defendant’s participation in the
accelerated rehabilitation program. The state maintains
that ‘‘despite the court’s use of the word ‘terminate’
when issuing its oral decision . . . [v]iewed in totality,
the substance of the court’s action . . . was a reconsid-
eration and denial of its initial decision granting the
program.’’ The state’s argument rests on the court’s
prefatory statements that it had been ‘‘led astray’’ and
‘‘made a mistake’’ in granting the defendant’s applica-
tion for the program. The state suggests that these state-
ments imply the court’s intent to reconsider and deny
the defendant’s application for the program, notwith-
standing the court’s express statement that it was going
to terminate the defendant’s participation in the pro-
gram. We decline the state’s invitation to disregard the
plain and unambiguous language of the trial court. See
46 Am. Jur. 2d 474, Judgments § 66 (2017) (‘‘[w]hen the
language of the judgment is plain and unambiguous,
there is no room for construction or interpretation’’).
‘‘The language of a judgment must be given its ordi-
nary meaning unless a technical or special meaning is
clearly intended.’’ Brewer v. Gutierrez, 42 Conn. App.
421, 424, 681 A.2d 345 (1996). Consistent with the ordi-
nary meaning of the plain language of the trial court,
we conclude that the court’s ruling constituted a termi-
nation of the defendant’s participation in the acceler-
ated rehabilitation program under § 54-56e (f) and,
accordingly, it is a final judgment for the purposes of
appeal.
II
The defendant claims on appeal that the trial court
abused its discretion by terminating, sua sponte, his
participation in the accelerated rehabilitation program.
Specifically, the defendant argues that the court erred
by (1) failing to provide notice that the court was con-
templating termination, (2) failing to permit argument
on termination, and (3) terminating the program despite
the fact that there was an insufficient basis to conclude
that the defendant violated the imposed conditions of
the program. We agree with the defendant that the
court’s termination of the defendant’s participation in
the accelerated rehabilitation program was an abuse of
its discretion.
‘‘We review the court’s rulings regarding a defen-
dant’s participation in the accelerated rehabilitation
program for an abuse of discretion. . . . Our review
of the trial court’s exercise of its discretion is limited
to the questions of whether the court correctly applied
the law and whether it could reasonably conclude as
it did. . . . It is only where an abuse of discretion is
manifest or where an injustice appears to have been
done that a reversal will result from the trial court’s
exercise of discretion. . . . Every reasonable pre-
sumption will be given in favor of the trial court’s ruling.
. . . The trial court’s findings of fact [underlying a ter-
mination] are entitled to great deference and will be
overturned only upon a showing that they were clearly
erroneous.’’ (Citation omitted; internal quotation marks
omitted.) State v. Jerzy G., 183 Conn. App. 757, 763,
193 A.3d 1215, cert. denied, 330 Conn. 932, 194 A.3d
1195 (2018).
‘‘[Section] 54-56e establishes a discretionary pretrial
diversionary program in certain criminal cases. It sus-
pends criminal prosecution for a stated period of time
subject to such conditions as the court shall order. If
the defendant satisfactorily completes the probationary
period he may then apply to the court for dismissal of
the charges lodged against him. The main thrust of the
statute is suspension of prosecution. . . . The only
right that the defendant acquires by the granting of a
motion for accelerated rehabilitation is the right to a
dismissal of the underlying criminal charge if the defen-
dant satisfactorily completes the period of pretrial pro-
bation imposed.’’ (Internal quotation marks omitted.)
State v. Fanning, 98 Conn. App. 111, 115, 908 A.2d 573
(2006), cert. denied, 281 Conn. 904, 916 A.2d 46 (2007).
‘‘If the defendant refuses to accept, or, having accepted,
violates such conditions [as the court shall order], the
defendant’s case shall be brought to trial.’’ General Stat-
utes § 54-56e (d); see State v. Trahan, 45 Conn. App.
722, 732, 697 A.2d 1153 (‘‘[i]f the trial court determines
that the defendant did not fulfill the conditions of proba-
tion, the charges will not be dismissed and the defen-
dant may be required to go to trial’’ (internal quotation
marks omitted)), cert. denied, 243 Conn. 924, 701 A.2d
660 (1997).
In State v. Jerzy G., supra, 183 Conn. App. 770, this
court upheld the trial court’s termination of a defen-
dant’s participation in an accelerated rehabilitation pro-
gram when the court’s decision ‘‘was a reasonable appli-
cation of our law and did not result in injustice to the
defendant.’’ In that case, after the trial court granted the
defendant’s application for the program, United States
Immigration and Customs Enforcement deported the
defendant to Poland. Id., 761. Upon probation’s request,
the trial court advanced the date for a determination
of whether the defendant had successfully completed
the terms of his accelerated rehabilitation. Id. At that
hearing, the state sought termination of the program.
Id. Following additional hearings, the trial court found
that the defendant, having been deported, was unable
to comply with the imposed conditions of the program.
Id., 769. The trial court indicated, however, that it would
consider ‘‘tak[ing] remedial action and reinstat[ing] [the
accelerated rehabilitation program] if somebody could
show that [the defendant] was successful and he’s back
here and wants to complete the program, but, until that
time, it remains terminated.’’ (Internal quotation marks
omitted.) Id. In support of this court’s conclusion that,
given the circumstances, the trial court’s decision ‘‘was
a reasonable application of our law and did not result
in injustice to the defendant,’’ we noted that ‘‘if the
defendant were to return to court, he presumably would
have the opportunity to present evidence regarding suc-
cessful completion.’’ Id., 770 and n.5.
In State v. Fanning, supra, 98 Conn. App. 117, this
court reversed the trial court’s termination of a defen-
dant’s participation in an accelerated rehabilitation pro-
gram because the only information provided to the
court was that the defendant had been arrested. In that
case, the defendant filed a motion to dismiss the charge
underlying his admission into the accelerated rehabili-
tation program. Id., 113. At the hearing on that motion,
the state made an oral motion to terminate the defen-
dant’s accelerated rehabilitation status, representing to
the court that the defendant had been arrested during
his participation in the program. Id. The trial court
then indicated that it was terminating the defendant’s
accelerated rehabilitation status. Id., 115. On appeal,
this court held that the mere fact of an arrest, without
more, was an insufficient basis for the court to termi-
nate the defendant’s participation in the accelerated
rehabilitation program. Id., 117; see also State v.
Buehler, 110 Conn. App. 814, 816, 956 A.2d 602 (2008).
In support of this court’s conclusion that the trial court
abused its discretion in terminating the program, we
noted that although the defendant did not dispute his
arrest, ‘‘the state filed no motion to terminate the defen-
dant’s accelerated rehabilitation status, but merely
orally moved to do so at the hearing on the defendant’s
motion to dismiss the case. . . . Thus, on the facts in
this case, it is not clear that the defendant had any
notice that the state intended to oppose his motion to
dismiss or would seek to terminate his pretrial proba-
tion.’’ State v. Fanning, supra, 122 n.4.
In the present case, the state sought only to impose
additional conditions requested by probation in order
to keep ‘‘a good eye on the defendant, and make sure
he is somebody who will, in fact, have earned his dis-
missal [of the charge] in the end.’’10 At the hearing on
the additional conditions, neither the state nor the
defendant were aware that the trial court was contem-
plating termination of the defendant’s participation in
the program. The defendant was not afforded ‘‘notice
that the state [or the trial court] intended to . . . termi-
nate’’ his participation in the program. State v. Fanning,
supra, 98 Conn. App. 122 n.4. When the court’s intention
became apparent, defense counsel twice attempted to
interject his concerns to no avail. See footnote 8 of
this opinion. The court did not offer the defendant the
opportunity to be heard on the issue of termination, but,
instead, repeated its request for counsels’ availability
to discuss the case once it was back on the pretrial
docket for prosecution. Moreover, the defendant did
not have an ‘‘opportunity to present evidence’’ regarding
successful compliance with the program. State v. Jerzy
G., supra, 183 Conn. App. 770 n.5.11
Furthermore, the trial court expressly based its deci-
sion on concerns about the defendant’s involvement
with the ManKind Project. The only information in the
record regarding the ManKind Project was probation’s
explanation of the goals of the organization, which
aligned with how the organization had been presented
to the court. When terminating the program, the court
stated that ‘‘the ManKind Project, as far as I know,
may be a fraternal organization, but it also has some
interesting idiosyncrasies, where parties go and they’re
subjected to more like a [boot camp like] atmosphere
where parties are told not to wear any clothing when
they’re there.’’ There is nothing in the record to support
this statement, which apparently came from an extraju-
dicial source.12 The defendant was not informed of the
source of this information or given any opportunity to
review or rebut it. Even assuming, arguendo, that such
information properly was considered by the court, the
mere allegation of concerning associations, without
more, is an insufficient basis for the court to terminate
the defendant’s participation in the accelerated rehabili-
tation program. See State v. Fanning, supra, 98 Conn.
App. 117; see also State v. Buehler, supra, 110 Conn.
App. 816.13
On the basis of the foregoing, we conclude that the
trial court’s termination of the defendant’s participation
in the accelerated rehabilitation program was an abuse
of its discretion.
On remand, we provide the following guidance to the
trial court. During the pendency of this appeal, the trial
court’s May 15, 2019 judgment terminating the defen-
dant’s participation in the accelerated rehabilitation
program was stayed pursuant to our rules of practice.
See Practice Book § 61-13. Consequently, on remand
the parties are returned to the status that they assumed
prior to the court issuing its judgment.14 Specifically,
under the terms of the defendant’s accelerated rehabili-
tation program, the two year period of accelerated reha-
bilitation was to expire on November 29, 2020, however,
the defendant’s two year period of accelerated rehabili-
tation is considered tolled from the time of the trial
court’s ruling, May 15, 2019, until ten days following
the release of this court’s decision.15 The conditions are
those that existed as of the May 15, 2019 hearing. To
the extent the state seeks to add conditions to the
defendant’s participation in the accelerated rehabilita-
tion program and the defendant does not agree to the
additional conditions, the parties may seek a further
hearing before the court regarding whether additional
conditions should be added.
The judgment is reversed and the case is remanded
for further proceedings consistent with this opinion.
In this opinion the other judges concurred.
1
The defendant characterizes the trial court’s ruling as a ‘‘termination.’’
The state disagrees with the defendant’s characterization. For the reasons
set forth in part I of this opinion, we agree with the defendant that the
trial court’s ruling is a termination of his participation in the accelerated
rehabilitation program. Accordingly, we refer throughout this opinion to the
trial court’s ruling as a termination.
2
The defendant also claims that the trial court lacked statutory authority,
under General Statutes § 54-56e, to terminate his participation in the acceler-
ated rehabilitation program without finding that the defendant failed to
comply with the imposed conditions of the program. The state contends that
the defendant’s statutory authority claim is unpreserved and, alternatively,
meritless. Because we resolve this appeal on the basis that the court abused
its discretion in terminating the defendant’s participation in the accelerated
rehabilitation program, we need not address the defendant’s additional statu-
tory authority claim. See State v. Peeler, 271 Conn. 338, 412 n.63, 857 A.2d
808 (2004), cert. denied, 546 U.S. 845, 126 S. Ct. 94, 163 L. Ed. 2d 110 (2005).
3
General Statutes § 53a-71 (a) (7) provides: ‘‘A person is guilty of sexual
assault in the second degree when such person engages in sexual intercourse
with another person and . . . the actor accomplishes the sexual intercourse
by means of false representation that the sexual intercourse is for a bona
fide medical purpose by a health care professional . . . .’’ The charges
against the defendant of sexual assault in the second degree in violation of
§ 53a-71 (a) (7) are class C felonies. See General Statutes § 53a-71 (b).
General Statutes § 53a-73a (a) (5) provides: ‘‘A person is guilty of sexual
assault in the fourth degree when . . . such person subjects another person
to sexual contact and accomplishes the sexual contact by means of false
representation that the sexual contact is for a bona fide medical purpose
by a health care professional . . . .’’ The charge against the defendant of
sexual assault in the fourth degree in violation of § 53a-73a (a) (5) is a class
A misdemeanor. See General Statutes § 53a-73a (b).
4
An individual charged with sexual assault in the second degree in viola-
tion of § 53a-71 (a) (7) is ineligible for the pretrial accelerated rehabilitation
program unless good cause is shown. See General Statutes § 54-56e (c)
(1) (C).
5
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 . . . not of a serious nature. Upon
application by any such person for participation in the program, the court
shall, but only as to the public, order the court file sealed.
‘‘(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 or of a violation of section 14-196, subsection (c) of section 14-215,
section 14-222a, subsection (a) or subdivision (1) of subsection (b) of section
14-224, section 14-227a or 14-227m or subdivision (1) or (2) of subsection
(a) of section 14-227n, 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 or that the defendant was
charged with a misdemeanor or a motor vehicle violation for which a term
of imprisonment of one year or less may be imposed and ten or more years
have passed since the date that any charge or charges for which the program
was invoked on the defendant’s behalf were dismissed by the court . . . .’’
On May 31, 2018, the Court Support Services Division, Office of Adult
Probation determined that the defendant was eligible for the accelerated
rehabilitation program because he had not used it previously.
6
Probation requested that the court impose the following additional condi-
tions to the defendant’s accelerated rehabilitation program: (1) ‘‘You will
participate in and complete any sex offender evaluation and recommended
treatment as directed by a [p]robation [o]fficer. You may be financially
responsible for all or part of the costs of such evaluation and treatment
. . . .’’ (2) ‘‘You will participate in polygraph examinations administered by
a [Court Support Services Division approved], specially trained polygraph
examiner for treatment purposes and level of supervision . . . .’’ (3) ‘‘You
will have no contact with victim(s), victim(s) family (including, but not
limited to, by means of letter, telephone call, tape, video, [e-mail], text
message or third party contact) unless approved by a [p]robation [o]fficer.
Contact with the victim(s) or victim(s) family must be reported immediately
to a [p]robation [o]fficer . . . .’’ (4) ‘‘You will notify the [p]robation [o]fficer
of any new or existing romantic or sexual relationships . . . .’’ (5) ‘‘You
will allow the [p]robation [o]fficer entry into your place of residence and
notify any occupant of your residence that a [p]robation [o]fficer may enter
where you live . . . .’’ (6) ‘‘All employment must be [pre]approved by a
[p]robation [o]fficer . . . .’’ (7) ‘‘You will provide financial and telephone
records upon a [p]robation [o]fficer’s request . . . .’’ (8) ‘‘You will abstain
from the use of any alcoholic beverages and/or drugs unless prescribed by
a physician [and] you will submit to random drug screens . . . .’’ (9) ‘‘You
will not possess or subscribe to . . . any sexually explicit or sexually stimu-
lating material deemed inappropriate by a [p]robation [o]fficer. You will not
patronize any adult book store or adult video store, strip club or adult
entertainment club or similar establishment . . . .’’ (10) ‘‘[You will] [s]ubmit
to [a] search of your person, possession, vehicle or residence when the
[p]robation [o]fficer has a reasonable suspicion to do so . . . .’’ (11) ‘‘You
will not utilize telephone numbers which provide access to sexually oriented
services . . . .’’ (12) ‘‘You will not hitchhike or pick up hitchhikers . . . .’’
(13) ‘‘You are not to associate with other known sex offenders and/or
convicted felons except in an approved treatment program or with prior
[p]robation [o]fficer approval . . . .’’ (14) ‘‘You are not allowed to leave the
[s]tate of Connecticut without an approved [a]ction [p]lan . . . .’’ (15) ‘‘You
will not utilize social, media sites, such as Facebook, Snapcha[t], Twitter,
Instagram, LinkedIn or any dating websites . . . .’’ (16) ‘‘You will not partici-
pate with the ManKind Project in any manner without submitting an [a]ction
[p]lan and approval from [probation]. If allowed to attend ManKind retreats,
you will attend as a participant and not as a leader or ‘staff man’.’’
In addition, probation requested that the defendant sign the following
computer access agreement: (1) ‘‘I will not access any site that contains
sexually explicit or sexually stimulating material and any other site that my
[p]robation [o]fficer has instructed me not to access . . . .’’ (2) ‘‘I agree
to have and voluntarily consent to having my computer examined and/or
searched at any time, announced or unannounced, by [p]robation or its
agent to verify compliance with the special condition of my probation,’’
[and] (3) ‘‘[u]se of the internet via a [s]mart [p]hone will be reviewable by
[probation] in conjunction with condition[s] [1] and [2] of the [c]omputer
[a]ccess [a]greement.’’
7
Specifically, the defendant objected to (1) ‘‘conditions regarding sex
offenses, such as the requirement of sexual offender evaluation and treat-
ment’’ because he had been undergoing treatment since approximately
March, 2018, with William Hobson, a licensed counselor with experience
treating sexual offenders, (2) the condition banning use of social media and
dating websites, (3) the condition prohibiting alcohol consumption, (4) the
condition restricting out of state travel, (5) the condition allowing home
visits by probation, and (6) the condition involving polygraph examinations.
The defendant also attached to his objection a letter from Hobson in which
Hobson opined that other conditions requested by probation likewise
were unnecessary.
8
Defense counsel twice tried to interject during the court’s ruling:
‘‘The Court: Well, I can resolve that pretty easily. And I’m going to do
that today.
‘‘[Defense Counsel]: Your Honor—
‘‘The Court: I’m going to terminate his accelerated rehabilitation. . . .
***
‘‘The Court: I thought it would be all right, but I’m more convinced now
that it would not be the right thing to do with this case.
‘‘[Defense Counsel]: Your Honor—
‘‘The Court: So we’re going to place this back on the pretrial docket, tell
me when you’re available.’’
9
Both parties have relied on the court’s oral ruling of May 15, 2019. The
record does not contain a signed transcript of the court’s decision, as is
required by Practice Book § 64-1 (a), and the defendant did not file a motion
pursuant to § 64-1 (b) providing notice that the court had not filed a signed
transcript of its oral decision. Furthermore, the defendant did not take any
additional steps to obtain a decision in compliance with § 64-1 (a). As
this court previously has stated, however: ‘‘In some cases in which the
requirements of . . . § 64-1 (a) have not been followed, this court has
declined to review the claims raised on appeal due to the lack of an adequate
record. Despite the absence of a signed transcript of the court’s oral decision
or a written memorandum of decision, however, our ability to review the
claims raised on the present appeal is not hampered because we are able
to readily identify a sufficiently detailed and concise statement of the court’s
findings in the transcript of the proceeding.’’ State v. Esquilin, 179 Conn.
App. 461, 464 n.1, 179 A.3d 238 (2018). Accordingly, we will review the
defendant’s claim.
10
There is nothing in the record suggesting that the defendant was not
complying with the conditions of his accelerated rehabilitation that were
previously imposed by the court.
11
Our appellate courts have not articulated whether due process requires
a full evidentiary hearing before terminating a defendant’s participation in
the accelerated rehabilitation program. This court has noted that ‘‘due pro-
cess does not, in every case require a full evidentiary hearing. What process
is constitutionally due cannot be divorced from the nature of the ultimate
decision that is being made. . . . Here, if the defendant’s participation in
the pretrial accelerated rehabilitation program is terminated, he will be
entitled to the full panoply of rights due an accused criminal defendant.’’
(Citation omitted; internal quotation marks omitted.) State v. Fanning,
supra, 98 Conn. App. 122 n.5. On the facts of this case, we hold that, because
the trial court failed to afford the defendant (1) notice that the court was
contemplating termination, (2) the opportunity to be heard, and (3) the
opportunity to present evidence, and the court improperly considered extra-
judicial information, the trial court abused its discretion in terminating the
defendant’s participation in the accelerated rehabilitation program.
12
‘‘A judge serving as a fact finder shall not investigate facts in a matter
independently and shall consider only the evidence presented and any facts
that may properly be judicially noticed.’’ Code of Judicial Conduct, Rule 2.9
(c). ‘‘The prohibition against a judge investigating the facts in a matter
extends to information available in all mediums, including electronic.’’ Code
of Judicial Conduct, Rule 2.9, comment (6). This extrajudicial information
was, therefore, not properly considered by the court.
13
The state urges this court to affirm the judgment of the trial court on
alternative grounds. The state argues that the information contained in
probation’s March 8, 2019 letter to the court supports the conclusion that
the case is ‘‘too serious’’ for accelerated rehabilitation. This argument runs
contrary to the state’s representations of the case at the May 15, 2019 hearing:
‘‘[T]he allegations . . . are serious, but, once again, not so serious that Your
Honor couldn’t find that [the defendant] shouldn’t have a shot at having
them dismissed.’’ Thus, we cannot determine that the court had a sufficient
basis to terminate the defendant’s participation in the accelerated rehabilita-
tion program.
14
See, e.g., State v. Brundage, 148 Conn. App. 550, 558, 87 A.3d 582 (2014)
(partially reversing trial court’s decision denying motion to dismiss ‘‘merely
returned the parties to the position that they would have been in had the
trial court properly ruled on the defendant’s motion to dismiss’’), aff’d, 320
Conn. 740, 135 A.3d 697 (2016); see also State v. Buehler, supra, 110 Conn.
App. 815–16 (reversing trial court’s termination of defendant’s participation
in accelerated rehabilitation program and remanding for further proceedings
despite two year statutory period of accelerated rehabilitation set forth in
§ 54-56e (d) having expired).
15
A reviewing court may order a statutory time period tolled when doing
so is necessary to effectuate the purpose of the statute. See State v. Garcia,
235 Conn. 671, 675, 669 A.2d 573 (1996) (recognizing proposition and ordering
time period for restoring competency under § 54-56d tolled during pendency
of appeal because ‘‘reasonably necessary and appropriate’’ to facilitate judg-
ment); see also State v. Johnson, 301 Conn. 630, 648, 26 A.3d 59 (2011)
(recognizing that reviewing court has authority to toll statute of limitations
during pendency of appeal in order to protect state’s right to reinstitute
charges). The purpose of the accelerated rehabilitation program is to ensure
that the probationer receives a period of ‘‘genuine rehabilitation’’ assisted
by the supervision of probation. (Internal quotation marks omitted.) State
v. Fanning, supra, 98 Conn. App. 116; State v. Jerzy G., supra, 183 Conn.
App. 764.