State v. Mourning

Opinion

PALMER, J.

In this certified appeal, the defendant, Marlik Mourning, claims that the Appellate Court improperly affirmed the judgment of the trial court revoking his probation and sentencing him to serve his previously suspended three year prison sentence. We conclude that the dispositional phase of the defendant’s probation revocation hearing was flawed because the defendant was not permitted personally to address the court at that phase of the hearing. Consequently, we reverse the judgment of the Appellate Court in part and direct that court to remand the case to another trial court for a new dispositional hearing at which the defendant will have the right of allocution.¹

The relevant facts are undisputed. After a trial to the court, the defendant was adjudicated a youthful offender² by having committed the crime of sexual assault in the third degree in violation of General Statutes § 53a-72a.³ On January 30, 1996, the court sentenced him to a term of imprisonment of three years, execution suspended, and three years probation. Among other things, the conditions of the defendant’s probation required him to return to school full-time, attend school every day except in the event of an excused absence for illness, arrive at school on time and pass all of his courses to the extent that he was capable of doing so. At the time of sentencing, the trial court was aware that, during the previous school year, the defendant had been absent from school sixty days and tardy fifty-nine days. The defendant also had been suspended five times for his truancy, and once for fighting. Finally, the trial court also was aware that the defendant twice had been adjudicated a juvenile delinquent, that he had failed to complete successfully an alternative incarceration program and that he used illicit drugs.⁴

On April 1,1996, the defendant’s school apprised the defendant’s probation officer that, during the month of March, 1996, the defendant twice had been absent from school without a bona fide excuse, had been tardy twelve times,⁵ had been suspended once for leaving the school grounds without authorization and, due to lack of effort, was failing to achieve credit for academic courses. On the basis of this report, the defendant’s probation officer applied for and received a warrant, charging the defendant with violating the conditions of his probation. See General Statutes (Rev. to 1995) § 53a-32.⁶ On May 9, 1996, the defendant was arrested pursuant to the warrant.

A probation revocation hearing was conducted on October 17, 1996. Immediately prior to the evidentiary portion of that hearing, counsel for the defendant sought a continuance of the hearing so that a psychiatric evaluation of the defendant, which had been initiated several days earlier, could be completed. The trial court, ⁷ noting that the hearing already had been scheduled and postponed eleven times, denied the defendant’s request. The state then presented the testimony of the defendant’s probation officer establishing that the defendant had been fully apprised of the conditions of his probation, and that he had understood them. The state also adduced evidence showing that, during the month of March, 1996, the defendant twice had been absent from school without justification, had been tardy twelve times and had been suspended once.

The defendant, who testified in his own behalf, did not contest the state’s evidence. Rather, he emphasized that, although he frequently had been tardy, he had been absent from school only two days during the relevant time period. He also testified that he had been ill-with the flu on those two days, and that he merely had failed to report his illness until his return to school. Finally, the defendant testified that his suspension was due to the fact that, on one occasion, he had unwittingly violated a school policy by leaving school grounds to buy a soda while school was still in session.

At the conclusion of the testimony, the state argued that the defendant’s repeated tardiness constituted a violation of the conditions of his probation.⁸ Defense counsel maintained that, because the defendant had a problem with oversleeping, his tardiness was not wilful and, consequently, the defendant’s conduct did not warrant a finding of a violation. The court, noting that the defendant already had been given “every opportunity” to change his behavior, concluded that the defendant wilfully violated the conditions of his probation. The court then revoked the order of probation and sentenced the defendant to the previously suspended three year term of imprisonment.

Defense counsel immediately objected to the trial court’s imposition of sentence on the ground that she had not been afforded the opportunity to be heard at the dispositional phase of the hearing. With the permission of the trial court, defense counsel then argued that a continuance of the dispositional phase of the hearing was necessaiy so that the defendant’s psychiatric evaluation could be completed.⁹ After defense counsel had completed her argument, the court rendered judgment revoking the defendant’s probation and sentencing him to serve the three year term of incarceration that previously had been suspended. Before the defendant had been removed from the courtroom, however, he made several requests personally to address the court.¹⁰ The court rejected the defendant’s requests, stating that the hearing had been concluded.

The defendant appealed from the trial court’s judgment to the Appellate Court, which, in a per curiam opinion, summarily affirmed the judgment of the trial court. State v. Mourning, 47 Conn. App. 916, 703 A.2d 1194 (1997). We granted the defendant’s petition for certification, limited to the following issue: “Under the circumstances of this case, did the trial court abuse its discretion by revoking the defendant’s probation of a conviction as a youthful offender and by sentencing the defendant to imprisonment?” State v. Mourning, 244 Conn. 924, 714 A.2d 11 (1998). We conclude that the trial court properly found the defendant in violation of the conditions of his probation. We also conclude, however, that the defendant is entitled to a new dispositional hearing because the court improperly failed to afford him the opportunity personally to address the court at the dispositional phase of the probation revocation hearing.¹¹

I

The defendant first contends that the trial court improperly found a violation of the conditions of probation. In particular, the defendant claims that: (1) the trial court unduly limited his right to present evidence by rejecting his request for a continuance at the dispositional phase of the probation revocation hearing until completion of the psychiatric evaluation; and (2) the defendant’s tardiness was not wilful and, moreover, his overall attendance record had improved markedly since his adjudication as a youthful offender. These claims, which require little discussion, are meritless.

With respect to the defendant’s contention that he was entitled to a continuance of the hearing so that the psychiatric evaluation could be completed,¹² the defendant has made no showing — indeed, he has made no claim — that he suffered from any psychiatric or other mental condition that might have affected his ability to be at school on time. Because the defendant’s repeated tardiness provided a sufficient basis for the court’s finding that he had violated the conditions of his probation, the defendant has failed to demonstrate how the psychiatric evaluation possibly could have had any bearing on the court’s finding of a violation.

With regard to the defendant’s second claim, the record supports the trial court’s determination that the state had demonstrated, by a preponderance of the evidence,¹³ that the defendant wilfully violated the condition of his probation requiring him to be punctual in his school attendance. The evidence indicated that the defendant was late for school more than 50 percent of the time class was in session during the month of March, 1996. The evidence adduced at the hearing also established that the defendant understood that, as a condition of his probation, he was not to be tardy. There is nothing in the record to indicate, however, that he had taken reasonable steps to avoid being tardy, such as using an alarm clock.¹⁴ Under the circumstances, therefore, it cannot reasonably be maintained that the evidence was insufficient to establish, by a preponderance of the evidence, that the defendant’s repeated tardiness constituted a wilful violation of his probation.

The defendant further contends that, in light of his improved overall attendance record, the trial court’s determination that he had violated a condition of his probation by being tardy was unfair and unjustified. The defendant, however, ignores the fact that his probation was conditioned expressly on the requirement that he arrive at school on time, not just that he attend school.¹⁵ Moreover, the defendant’s repeated tardiness — he was late for school more often than not in March, 1996 — cannot be characterized either as an improvement or as an inconsequential or trivial breach of the probation order.¹⁶ Because the record fully supports the trial court’s determination that the defendant wilfully failed to comply with the condition of his probation requiring him to be punctual, the defendant’s claim must fail.¹⁷

II

The defendant next claims that he is entitled to a new dispositional hearing. Specifically, he contends that the trial court abused its discretion in denying him a continuance at the dispositional phase of the hearing so that the defendant’s psychiatric evaluation could be completed. We need not address that argument in light of our determination that the defendant is entitled to a new dispositional hearing because he was denied the opportunity personally to address the court at the original hearing.¹⁸

In State v. Strickland, 243 Conn. 339, 354, 703 A.2d 109 (1997), we held that what is now Practice Book § 43-10 (3),¹⁹ which affords criminal defendants the right personally to address the court at the time of sentencing, also applies to the dispositional phase of a probation revocation hearing. In Strickland, as in this case, the defendant had sought the opportunity to address the court immediately after the court had revoked his probation and imposed sentence. See State v. Strickland, supra, 342-43. The trial court denied the defendant’s request to speak and, on appeal, the Appellate Court affirmed the judgment of the trial court, concluding that the defendant had no right of allocution at the dispositional phase of the hearing. Id., 343. Upon granting the defendant’s petition for certification to appeal in Strickland, we reversed the judgment of the Appellate Court on the ground that our mies of practice provide a defendant with the right personally to address the court at the dispositional phase of a probation revocation hearing. Id., 354. This case is factually and legally indistinguishable from Strickland,²⁰ Thus, in accordance with our holding in Strickland, we conclude that the defendant is entitled to a new dispositional hearing at which he will be afforded the opportunity personally to address the court.²¹

The judgment of the Appellate Court is affirmed to the extent that it affirmed the trial court’s finding that the defendant violated the conditions of his probation; the judgment of the Appellate Court is reversed to the extent that it affirmed the trial court’s revocation of the defendant’s probation and order sentencing him to serve his previously suspended three year prison sentence, and the case is remanded to the Appellate Court with direction to remand the case to a new trial court to conduct another dispositional hearing at which the defendant is to be afforded the right of allocution.

In this opinion BORDEN, NORCOTT and KATZ, Js., concurred.

1 On January 25, 1999, five days after oral argument in this appeal, we granted the defendant a new dispositional hearing. Because the defendant already had served over 800 days of his three year sentence as of that date, we immediately issued a per curiam decision reversing the judgment of the Appellate Court and remanding the case to that court with direction to: (1) reverse the judgment of the trial court in part; and (2) remand the case to the trial court for a new dispositional hearing. State v. Mourning, 247 Conn. 634, 635, 723 A.2d 316 (1999). We also indicated that this opinion, which more fully explains our reasons for reversing the judgment of the Appellate Court, would be released subsequently. Id.

2 See General Statutes § 54-76b et seq.

3 General Statutes § 53a-72a provides in relevant part: “Sexual assault in the third degree ... (a) A person is guilty of sexual assault in the third degree when such person (1) compels another person to submit to sexual contact (A) by the use of force against such other person or a third person, or (B) by the threat of use of force against such other person or against a third person, which reasonably causes such other person to fear physical injury to himself or herself or a third person . . . .”

4 The defendant also was required, as a condition of his probation, to undergo random urine testing due to his illegal drug use.

5 The report submitted to the defendant’s probation officer by the school indicated that there were twenty-two days in the month of March when school was open and the defendant was expected to be in attendance.

6 General Statui es (Rev. to 1995) § 53a-32 provides in relevant part: “Violation of probation or conditional discharge: Arrest; procedure, (a) At any time during the period of probation or conditional discharge, the court or any judge thereof may issue a warrant for the arrest of a defendant for violation of any of the conditions of probation or conditional discharge . . . . Any probation officer may arrest any defendant on probation without a warrant or may deputize any other officer with power to arrest to do so by giving him a written statement setting forth that the defendant has, in the judgment of the probation officer, violated the conditions of his probation. . . . Thereupon, or upon an arrest by warrant as herein provided, the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charges. At such hearing the defendant shall be informed of the manner in which he is alleged to have violated the conditions of his probation or conditional discharge, shall be advised by the court that he has the right to retain counsel and, if indigent, shall be entitled to the services of the public defender, and shall have the right to cross-examine witnesses and to present evidence in his own behalf.

“(b) If such violation is established, the court may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence. No such revocation shall be ordered, except upon consideration of the whole record and unless such violation is established by reliable and probative evidence.”

7 The probation revocation hearing was held before the same trial judge who had adjudicated the defendant a youthful offender and imposed the suspended three year prison sentence.

8 Although the state, in closing argument, directed the court’s attention specifically to the defendant’s repeated tardiness, the state also relied on the defendant’s unexcused absences and suspension from school to support its claim that the defendant had violated the conditions of his probation.

9 Defense counsel also indicated that she needed the additional time to find a suitable residential placement for the defendant.

10 Immediately after the trial court had imposed sentence and remanded the defendant to custody, the defendant asked: “Your Honor, can I please talk to you?” Shortly thereafter, the defendant again tried to get the court’s attention, but was interrupted by his mother, who insisted upon addressing the court — sometimes in wholly inappropriate terms — even after the sentence had been imposed. Finally, before the sheriff removed the defendant from the courtroom, the defendant once again stated: “Your Honor, can I please talk to you, please? Talk to me, please? I want to talk to you — ”

11 As we have stated, “a probation revocation hearing has two distinct components. . . . The trial court must first conduct an adversarial evidentiary hearing to determine whether the defendant has in fact violated a condition of probation. ... If the . . . court determines that the evidence has established a violation of a condition of probation, then it proceeds to the second component of probation revocation, the determination of whether the defendant’s probationary status should be revoked. On the basis of its consideration of ‘the whole record,’ the trial court ‘may continue or revoke the sentence of probation or conditional discharge or modify or enlarge the conditions, and, if such sentence is revoked, require the defendant to serve the sentence imposed or impose any lesser sentence.’ General Statutes § 53-32 (b). In malting this second determination, the trial court is vested with broad discretion. State v. Smith, 207 Conn. 152, 167, 540 A.2d 679 (1988) (Citation omitted.) State v. Davis, 229 Conn. 285, 289-90, 641 A.2d 370 (1994).

12 The psychiatric evaluation was not completed by October 17, 1996, the date of the probation revocation hearing, even though the defendant had been arrested for allegedly violating the conditions of his probation on May 9, 1996.

13 The state has the burden of establishing a violation of the conditions of probation by a fair preponderance of the evidence. State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).

14 The defendant testified that he did not have an alarm clock. He gave no reason, however, for not obtaining one.

15 The defendant does not claim that the condition of his probation requiring that he not be tardy was unlawful or otherwise improper.

16 We note that the trial court, when imposing sentence in connection with the defendant’s third degree sexual assault conviction, indicated that the defendant needed structure in his life and expressly informed the defendant that he would be imprisoned if he did not comply strictly with the conditions of his probation. Indeed, defense counsel, who had acknowledged that the defendant’s “real problem in life is his chronic tardiness, which has affected his schoolwork and family,” urged the court to “[p]ut something hanging over his head that’s going to force him to follow the rules.”

17 The dissent gratuitously iqjects the specter of racial discrimination into this case. This case is not about discrimination, and no such allegation ever has been raised by the defendant or defense counsel, either in the trial court or on appeal.

18 As we indicated in our per curiam decision announcing our judgment in this case; see State v. Mourning, 247 Conn. 634, 635 n.1, 723 A.2d 316 (1999); the defendant now will have the opportunity to pursue the psychiatric evaluation if he still wishes to do so.

19 Practice Book § 43-10, formerly § 919, provides in relevant part: "Sentencing Hearing; Procedures to Be Followed

“Before imposing a sentence or making any other disposition after the acceptance of a plea of guilty or nolo contendere or upon a verdict or finding of guilty, the judicial authority shall, upon the date previously determined for sentencing, conduct a sentencing hearing as follows . . .

“(3) The judicial authority shall allow the defendant a reasonable opportunity to make a personal statement in his or her own behalf and to present any information in mitigation of the sentence. . . .”

20 We note that the per curiam decision of the Appellate Court in this case was issued on December 2, 1997, the very same day on which we released our decision in Strickland.

21 It bears mention that even though this case is controlled by our holding in Strickland, neither party referred to that case, or raised the issue decided by that case, in their briefs or at oral argument. Although we normally would not decide an issue that has not been raised by the parties without first affording the parties an opportunity to address it, we have chosen to deviate from that practice in this case because we are satisfied that Strickland, which we decided approximately one and one-half years ago, cannot be distinguished from this case. Moreover, for whatever reasons, we did not hear oral argument in this case until the defendant had completed approximately three quarters of his three year prison sentence. In light of our holding in Strickland, any further delay in the resolution of this appeal simply cannot be justified.