State v. Fletcher

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STATE OF CONNECTICUT v. DARRYL FLETCHER
(AC 39358)
Lavine, Alvord, and Keller, Js.
Syllabus
The defendant appealed to this court from the judgment of the trial court
revoking his probation and committing him to the custody of the Com-
missioner of Correction for eighteen months. The defendant was charged
with violating his probation after he failed to verify his employment
with his probation officers, to complete a domestic violence treatment
program and to submit to a drug treatment program, and tested positive
for marijuana and cocaine use. On appeal, he claimed that, in the disposi-
tional phase of the hearing, the trial court improperly inferred from the
evidence that, for nearly a year, he had eluded service of the warrant
charging him with violation of his probation, and that the court, in
imposing the sentence, substantially relied on its faulty determination
that he had avoided being arrested. Held:
1. The state could not prevail on its claim that the appeal had become moot
because there was no practical relief that could be afforded to the
defendant, who had completed his sentence for violating his probation
and had been released from the custody of the Department of Correction,
as the appeal qualified for an exception to the mootness doctrine; despite
the expiration of the defendant’s sentence, there was a reasonable possi-
bility that, in the event that the defendant were to face a sentencing
court in the future, the court’s determination revoking his probation
and sentencing him to a period of incarceration could subject him to
prejudicial collateral consequences, and there was also a reasonable
possibility that the presence of the sentence on his criminal record
could subject him to prejudicial collateral consequences affecting his
employment opportunities and his standing in the community generally,
and this court had the ability to provide the defendant practical relief
by granting him a new dispositional hearing that could result in a more
favorable outcome.
2. The defendant’s unpreserved claim that the trial court improperly relied
on a fact that was not part of the record when it found that he had
tried to elude law enforcement in their efforts to serve the violation of
probation warrant was unavailing; the information on which the court
relied satisfied the requisite standard of reliability, as the court reason-
ably inferred from the facts that the warrant officer had made reasonable
efforts to locate the defendant but was unable to find him and that, as
a consequence, law enforcement took almost a year to serve the warrant,
and there was evidence in the record that the defendant’s whereabouts
were not readily ascertainable and that during the defendant’s probation-
ary period, he moved frequently, did not keep probation informed of
his whereabouts and did not take any steps to make his whereabouts
known or to turn himself in with respect to the warrant, and the defen-
dant did not demonstrate that the inference drawn by the court was
unreasonable or unjustifiable, as the court’s inference from the warrant
officer’s testimony that the warrant officer was unable to locate the
defendant for nearly a year was a logical conclusion based on the evi-
dence and was not the product of speculation or conjecture.
Argued March 12—officially released June 26, 2018
Procedural History
Substitute information charging the defendant with
violation of probation, brought to the Superior Court
in the judicial district of New Haven, and tried to the
court, B. Fischer, J.; judgment revoking the defendant’s
probation, from which the defendant appealed to this
court. Affirmed.
Laila M. G. Haswell, senior assistant public defender,
for the appellant (defendant).
Jennifer W. Cooper, special deputy assistant state’s
attorney, with whom, on the brief, were Patrick J. Grif-
fin, state’s attorney, and Karen A. Roberg, assistant
state’s attorney, for the appellee (state).
Opinion
KELLER, J. The defendant, Darryl Fletcher, appeals
from the judgment of the trial court revoking his proba-
tion pursuant to General Statutes § 53a-32 and sentenc-
ing him to a term of incarceration of eighteen months.
The defendant claims that he is entitled to a new sen-
tencing hearing because the court improperly relied on
a fact that was not part of the record. We affirm the
judgment of the trial court.
The following undisputed facts and procedural his-
tory are relevant to our analysis. In 1999, the defendant
was convicted of possession of narcotics with intent
to sell by a person who is not drug-dependent in viola-
tion of General Statutes § 21a-278 (b), possession of
narcotics with intent to sell within 1500 feet of a public
school in violation of General Statutes § 21a-278a (b),
possession of marijuana in violation of General Statutes
§ 21a-279 (c), and three counts of criminal possession
of a pistol or revolver in violation of General Statutes
§ 53a-217c. The defendant received a total effective sen-
tence of twenty years, execution suspended after thir-
teen years, followed by five years of probation. This
court affirmed the judgment of conviction. State v.
Fletcher, 63 Conn. App. 476, 777 A.2d 691, cert. denied,
257 Conn. 902, 776 A.2d 1152 (2001).
The defendant’s probationary period commenced
when he was released from incarceration on November
17, 2011.1 Among the court-ordered special conditions
of the defendant’s probation2 was that he submit to
drug screening, evaluation, and treatment and that he
obtain full-time verifiable employment.
In 2015, the defendant was arrested and charged with
violating his probation in violation of General Statutes
§ 53a-32. The defendant denied the charge. The matter
was tried before the court on May 2, 2016. At the conclu-
sion of the adjudicatory phase of the hearing, the court
found that the state had proven that the defendant had
violated several of the conditions of his probation. Spe-
cifically, the court found that the defendant did not
verify his employment with his probation officers, failed
to complete a domestic violence treatment program,
failed to submit to a drug treatment program, and tested
positive for marijuana and cocaine use. At the conclu-
sion of the dispositional phase of the hearing, the court
terminated the defendant’s probationary status and sen-
tenced him to serve a term of incarceration of eigh-
teen months.3
On June 28, 2016, the defendant filed the present
appeal. The defendant does not claim that the court
erroneously determined, in the adjudicative phase of
the hearing, that he violated his probation. The defen-
dant claims that, in the dispositional phase of the hear-
ing, the court improperly inferred from the evidence
that, for nearly a year, he eluded service of the warrant
charging him with violating his probation.4 Moreover,
the defendant argues that, in imposing its sentence, the
court ‘‘substantially relied upon its faulty determination
that the defendant was avoiding being arrested . . . .’’
The remedy that he seeks from this court is a new
sentencing hearing.
On August 31, 2017, after the defendant filed his prin-
cipal brief, the state filed a motion to dismiss the appeal
on the ground that it became moot when the defendant
was released from the custody of the Department of
Correction (department) on August 22, 2017. The state
argued that this court could no longer afford the defen-
dant, who was challenging only the manner in which
the court imposed its sentence and not the finding that
he had violated his probation, any practical relief. In
his objection to the motion to dismiss, the defendant
acknowledged that he had been released from custody
on August 22, 2017, but argued that exceptions to the
mootness doctrine applied and that this court should
not dismiss the appeal. This court denied the state’s
motion without prejudice to the state, and permitted
the state to address the mootness issue in its brief and
the defendant to address the issue in his reply brief.
They have done so. Additional facts will be set forth
as necessary.
I
First, we address the state’s argument that the appeal
is moot because the defendant has completed his sen-
tence. ‘‘Mootness is a question of justiciability that must
be determined as a threshold matter because it impli-
cates [a] court’s subject matter jurisdiction . . . . It is
well settled that [a]n issue is moot when the court can
no longer grant any practical relief.’’ (Citation omitted;
internal quotation marks omitted.) Middlebury v. Con-
necticut Siting Council, 326 Conn. 40, 53–54, 161 A.3d
537 (2017). ‘‘Under such circumstances, the court would
merely be rendering an advisory opinion, instead of
adjudicating an actual, justiciable controversy.’’ State
v. Jerzy G., 326 Conn. 206, 213, 162 A.3d 692 (2017).
‘‘Because courts are established to resolve actual con-
troversies, before a claimed controversy is entitled to
a resolution on the merits it must be justiciable. . . .
Justiciability requires (1) that there be an actual contro-
versy between or among the parties to the dispute . . .
(2) that the interests of the parties be adverse . . .
(3) that the matter in controversy be capable of being
adjudicated by judicial power . . . and (4) that the
determination of the controversy will result in practical
relief to the complainant.’’ Glastonbury v. Metropolitan
District Commission, 328 Conn. 326, 333, 179 A.3d 201
(2018). ‘‘[A]n actual controversy must exist not only at
the time the appeal is taken, but also throughout the
pendency of the appeal. . . . When, during the pen-
dency of an appeal, events have occurred that preclude
an appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Internal quotation marks omitted.) State v.
McElveen, 261 Conn. 198, 205, 802 A.2d 74 (2002). ‘‘If
there is no longer an actual controversy in which [this
court] can afford practical relief to the parties, we must
dismiss the appeal. . . . In determining mootness, the
dispositive question is whether a successful appeal
would benefit the plaintiff or defendant in any way.’’
(Citation omitted; internal quotation marks omitted.)
Medeiros v. Medeiros, 175 Conn. App. 174, 196, 167 A.3d
967 (2017).
The parties do not dispute that because the defendant
has completed his sentence, this court no longer has
the ability to reduce the number of days he must remain
incarcerated. On this ground, the state argues that this
court may not grant any practical relief and that the
appeal should be dismissed. In reply, the defendant
argues that this appeal falls within two well settled
exceptions to the mootness doctrine, namely, the collat-
eral consequences exception as well as the exception
for appeals involving issues that are capable of repeti-
tion yet evade review.
‘‘[T]he court may retain jurisdiction when a litigant
shows that there is a reasonable possibility that prejudi-
cial collateral consequences will occur. . . . [T]o
invoke successfully the collateral consequences doc-
trine, the litigant must show that there is a reasonable
possibility that prejudicial collateral consequences will
occur. Accordingly, the litigant must establish these
consequences by more than mere conjecture, but need
not demonstrate that these consequences are more
probable than not. This standard provides the necessary
limitations on justiciability underlying the mootness
doctrine itself. Where there is no direct practical relief
available from the reversal of the judgment . . . the
collateral consequences doctrine acts as a surrogate,
calling for a determination whether a decision in the
case can afford the litigant some practical relief in the
future.’’ (Internal quotation marks omitted.) State v.
Reddy, 135 Conn. App. 65, 69–70, 42 A.3d 406 (2012);
see also Williams v. Ragaglia, 261 Conn. 219, 226, 802
A.2d 778 (2002) (litigant bears burden of demonstrating
reasonable possibility that prejudicial consequences
will occur); State v. McElveen, supra, 261 Conn. 205
(same).
The defendant argues: ‘‘The record of jail in his crimi-
nal history will stigmatize him in the community for
the rest of his life and hinder his efforts to obtain mean-
ingful employment. And if he is ever charged with
another crime, judges and prosecutors will factor in
the defendant’s incarceration when determining a sen-
tence.’’ Also, the defendant argues: ‘‘Although our citi-
zens suffer greatly from the collateral consequences of
convictions, it is simply not the case that all collateral
consequences arise from the conviction alone. Any
potential employer or school admissions office would
know from the defendant’s record that he has served
time in prison. They would understand that during that
time the defendant was not learning new skills and
was not making connections within the community that
would benefit future employment. Just the fact that the
defendant’s transgressions had earned him the most
severe punishment possible in our criminal justice sys-
tem, rather than a fine or more probation, will hurt him
because the stigma of incarceration is much heavier
than other, lesser sentences. . . . To suggest other-
wise ignores the very real barriers that former inmates
contend with every day after they are released from jail
and return to their communities.’’ (Footnote omitted.)
Essentially, the defendant’s appeal is based on what
he claims to be error in the court’s determination to
revoke his probation. ‘‘Our Supreme Court has recog-
nized that revocation of probation hearings, pursuant
to [General Statutes] § 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. Altajir, 123 Conn. App. 674, 680–81,
2 A.3d 1024 (2010), aff’d, 303 Conn. 304, 33 A.3d 193
(2012). The defendant argues that the court’s allegedly
erroneous finding in the dispositional phase led it to
revoke his probation and order him to serve a substan-
tial portion of his unexecuted prison sentence. He
argues that, in the absence of the court’s error, it may
have imposed a lesser form of punishment, including
permitting him to remain on probation.
With respect to employment and his standing in the
community generally, the defendant has identified what
he believes to be a reasonable probability of prejudicial
collateral consequences that do not arise from the
court’s finding that he violated his probation, but the
fact that, in the dispositional phase of the proceeding,
the court revoked his probation and sentenced him to
a term of incarceration.5 Also, the defendant argues that
there is a reasonable probability that, if he were to be
convicted of a crime in the future, the court’s sentence
could result in his receiving greater punishment by a
future sentencing court. The defendant argues that a
future sentencing court could learn from his criminal
record that he had been sentenced to serve time in
prison for violating his probation and use this informa-
tion to his detriment. The defendant argues: ‘‘A jail
sentence reveals to future sentencing courts that the
defendant failed to demonstrate [that a lesser form of
punishment was appropriate] . . . and that the benefi-
cial aspects of [the defendant’s] probation could [not]
continue to be served by allowing the defendant to
remain on probation. . . . Such information signals to
the court that the defendant’s violations were serious
and that he was wilful, uncooperative, unable to submit
to authority, and averse to being rehabilitated.’’ (Inter-
nal quotation marks omitted.)
In evaluating the defendant’s arguments, we look for
guidance in relevant appellate case law. In State v. McEl-
veen, supra, 261 Conn. 214–15, our Supreme Court con-
cluded that, despite the fact that the sentence imposed
upon a defendant following his probation violation had
expired, it was reasonably possible that collateral con-
sequences flowed from the fact that his probation had
been revoked. The court concluded that his appeal from
the judgment of the trial court revoking his probation
was not rendered moot due to the expiration of his
sentence, and stated: ‘‘We appreciate that there is some-
thing unsettling about looking to future involvement
with the criminal justice system as a predicate for our
determination that a case such as the present one is
not moot. Even under its more narrow application of the
collateral consequences doctrine, however, the United
States Supreme Court has relied upon collateral conse-
quences that would arise in the event of future criminal
behavior to conclude that an otherwise moot judgment
of conviction merits review.’’ Id.
In State v. Preston, 286 Conn. 367, 369, 944 A.2d
276 (2008), a defendant appealed from the judgment
rendered following a probation revocation proceeding
and claimed that the trial court (1) improperly found
that he had violated his probation and (2) abused its
discretion in revoking his probation. Relying on the fact
that the defendant had pleaded guilty to the underlying
offenses, thereby eliminating any live controversy about
his conduct, this court dismissed his first claim as moot.
Id. This court dismissed the second claim as moot for
lack of a live controversy because it determined that
the defendant failed to demonstrate that prejudicial
consequences flowed from the revocation of his proba-
tion. Id., 369–70. Following a grant of certification to
appeal, our Supreme Court reversed the judgment of
this court with respect to the defendant’s claim that
the trial court had abused its discretion when it revoked
his probation. Id., 370–71.
In Preston, our Supreme Court determined, initially,
that a circumstance that renders moot a claim arising
from the evidentiary phase of a revocation of probation
hearing does not necessarily render moot a claim arising
from the dispositional phase of the hearing. Id., 380.
Thereafter, the court determined that it was reasonably
possible that the defendant would suffer collateral con-
sequences as a result of the revocation of his probation.
Id., 382–84. Relying on McElveen and other relevant
authority, the court reasoned that prejudice flowed
from the revocation of probation. Id., 383. The court,
quoting this court’s decision in State v. Johnson, 11
Conn. App. 251, 256, 527 A.2d 250 (1987), stated: ‘‘ ‘[P]ro-
bation revocation is a blemish on [the defendant’s]
prison record which will affect his job opportunities
and his standing in the community because it connotes
wrongdoing and intractability and is a burden analogous
and in addition to his criminal stigma.’ ’’ State v. Preston,
supra, 383.
Finally, in State v. Natal, 113 Conn. App. 278, 280,
966 A.2d 331 (2009), the defendant appealed from the
judgment of the trial court revoking his probation and
committing him to the custody of the Commissioner of
Correction for two years. He raised a claim related
to the adjudicative phase of the probation revocation
hearing and a claim related to the dispositional phase
of the hearing. Id. Despite the fact that the defendant’s
sentence expired during the pendency of the appeal,
this court explained that the appeal was not moot, stat-
ing: ‘‘Although the defendant’s two year sentence
appears to have expired . . . the present appeal is not
moot due to the collateral consequences doctrine. In
State v. McElveen, [supra, 261 Conn. 198], our Supreme
Court determined that subject matter jurisdiction
existed over an appeal from the revocation of probation
even though the probationer subsequently completed
his term of incarceration [during the pendency of the
appeal]. The court reasoned that there were collateral
consequences that reasonably could ensue as a result
of a probation revocation, such as a negative impact
on a defendant’s standing in the community and the
ability to secure employment. . . . Because there is a
reasonable possibility that those collateral conse-
quences will attach in the present case, the appeal is
not moot.’’ Id., 282 n.1.
We observe that ‘‘[i]t is a fundamental sentencing
principle that a sentencing judge may appropriately con-
duct an inquiry broad in scope, and largely unlimited
either as to the kind of information he may consider
or the source from which it may come. . . . The trial
court’s discretion, however, is not completely unfet-
tered. As a matter of due process, information may be
considered as a basis for a sentence only if it has some
minimal indicium of reliability.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Huey, 199 Conn.
121, 127, 505 A.2d 1242 (1986). A defendant’s criminal
record may shed light on his willingness to conform to
socially acceptable behavior and, thus, is a relevant
factor to consider at the time of sentencing. See General
Statutes § 54-91a (c) (presentence investigation report
shall include information regarding defendant’s crimi-
nal history); State v. Garvin, 43 Conn. App. 142, 152, 682
A.2d 562 1996) (‘‘[f]or the determination of sentences,
justice generally requires consideration of more than
the particular acts for which the crime was committed
and that there be taken into account the circumstances
of the offense together with the character and propensi-
ties of the offender’’ [internal quotation marks omit-
ted]), aff’d, 242 Conn. 296, 699 A.2d 921 (1997).
A record that reflects that a defendant has violated
his probation and that probation has been revoked
sheds light on his criminal character because, as the
defendant argues, such information reflects that the
defendant’s violations were serious enough to warrant
a finding that the beneficial aspects of probation were
no longer being served. As our case law reflects, the
court’s disposition gave rise to a reasonable possibility
of prejudicial consequences for the defendant. See, e.g.,
State v. Smith, 207 Conn. 152, 161, 540 A.2d 679 (1988)
(‘‘[i]f the revocation of the defendant’s probation
stands, it may not only have an effect on his ability to
obtain probation in the future but also affect his stand-
ing in the community in its connotation of wrongdoing,
job opportunities and is a blemish on his record’’).
In the present case, the defendant challenges the
court’s exercise of discretion in the dispositional phase
of the revocation of probation hearing. See State v.
Faraday, 268 Conn. 174, 185–86, 842 A.2d 567 (2004)
(abuse of discretion standard of review applies to
court’s determination in dispositional phase). On the
basis of the foregoing authority, we are persuaded that,
despite the expiration of the defendant’s sentence, there
is a reasonable possibility that, in the event that the
defendant were to face a sentencing court in the future,
the court’s determination in revoking probation and
sentencing the defendant to a period of incarceration
may subject him to prejudicial collateral consequences.
Additionally, we are persuaded that there is a reason-
able possibility that, despite the expiration of the defen-
dant’s sentence, its presence on the defendant’s
criminal record could subject him to prejudicial conse-
quences affecting not merely his employment opportu-
nities, but his standing in the community generally.
If the court made improper findings in the disposi-
tional phase of the hearing and relied on such findings
in sentencing the defendant, this court has the ability
to provide the defendant practical relief by granting the
defendant a new dispositional hearing that could result
in a more favorable outcome. In light of the prejudicial
collateral consequences we have discussed, we retain
jurisdiction over the appeal despite the fact that the
defendant has completed serving his sentence. Accord-
ingly, we reject the state’s argument that the present
appeal should be dismissed on mootness grounds.6
II
Next, we address the defendant’s claim that the court
improperly relied on a fact that was not part of the
record. We disagree.
The following additional information is relevant to
the present claim. During the dispositional phase of the
hearing, the court heard testimony from Yvonne Lee,
the defendant’s probation officer; Matthew Steinfeld, a
psychologist who provided substance abuse treatment
to the defendant following his arrest for violating his
probation; and Clint Cave, the defendant’s cousin who
had employed the defendant following his release
from prison.
In its oral ruling in the dispositional phase of the
hearing, which later became the court’s signed, written
memorandum of decision in accordance with Practice
Book § 64-1 (a), the court found in relevant part: ‘‘[Y]ou
had seven years hanging over your head. The thing that
is just surprising to me is how [flippant] you seem to
be with probation. . . . You . . . missed countless
meetings with them. You never kept them posted on
your address here in Connecticut. You kept moving
along. You were very evasive with them. You went out
of state without their permission. You had violations
where you didn’t follow through with [a program
offered by] Catholic Charities. . . .
‘‘[There were problems with the] nonviolence pro-
gram where . . . you were given two opportunities.
You didn’t follow through. You had positive marijuana
use in September and October in 2014. . . . Again, this
is when you’re meeting with probation. . . .
‘‘[I]t shouldn’t have taken you all these opportunities
to finally, quote, unquote, get it. And there’s a price to
be paid for that. Again . . . anybody who is on proba-
tion is on thin ice. You know, in many ways, you were
fortunate they didn’t violate you, and I know they filed
a warrant or one was signed in November of 2014,
and they couldn’t find you, and it took them a year to
eventually serve the warrant on it. You had multiple
arrests while on probation, and you had domestic mat-
ters, violation of protective orders. You had driving
suspensions. So you [engaged in] numerous [types of]
criminal activity during your course of probation. Lis-
ten, to your credit, the testimony from Dr. Steinfeld
was positive for you. He did indicate that you were a
good part of the group, that you graduated from the
group, that your testing for the drugs [had] been going
down, and he felt that . . . his plan and their treatment
of you has [had] a positive effect on you. But as you
heard earlier, you’re in violation. There’s many viola-
tions here. . . .
‘‘And you heard the probation officers. They don’t
want to . . . put you back on probation because you
never showed up at half the meetings. You never fol-
lowed through with what you were supposed to do. I
mean, you dropped the ball countless, countless times.
So there’s a penalty to be paid for that. So I feel out of
all the facts I heard at this hearing, the arguments of
the attorneys, and your comments, that a degree of
incarceration is appropriate.’’ The court then revoked
probation and imposed a sentence of eighteen months
of incarceration.
The defendant argues that the court improperly found
that a warrant officer, or members of law enforcement
generally, had looked for him for a year to serve the
violation of probation warrant on him. He argues that
the court substantially relied on this improper finding
in reaching its disposition. The defendant argues that
‘‘the record reflects that the warrant was not served
for nearly a year after it was signed, [but] there was
no evidence that the authorities ever searched for the
defendant. Moreover, there was no evidence that the
defendant tried to elude capture during this period.’’7
The defendant correctly acknowledges that he did not
object to the court’s reliance on its findings at the time
of trial. He seeks review of this unpreserved claim under
the bypass rule set forth in State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989).8 We will review the
claim under Golding because the record is adequate
for review and the claim implicates the defendant’s
due process right not to be sentenced on the basis of
improper factors or erroneous information. See State
v. Thompson, 197 Conn. 67, 77, 495 A.2d 1054 (1985).
‘‘The standard of review of the trial court’s decision at
the [dispositional] phase of the revocation of probation
hearing is whether the trial court exercised its discre-
tion properly by reinstating the original sentence and
ordering incarceration. . . . In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
where an abuse of discretion is manifest or where injus-
tice appears to have been done. . . .
‘‘In this exercise of broad discretion, however, the
trial court must continue to comport with the require-
ments of due process. The United States Supreme Court
has recognized that [b]oth the probationer . . . and
the [s]tate have interests in the accurate finding of fact
and the informed use of discretion—the probationer
. . . to insure that his liberty is not unjustifiably taken
away and the [s]tate to make certain that it is neither
unnecessarily interrupting a successful effort at rehabil-
itation nor imprudently prejudicing the safety of the
community. . . . Our review of whether the trial court
engaged in such an informed use of discretion . . . is
in turn governed by the well established standards for
reviewing a trial court’s exercise of similarly broad dis-
cretion at sentencing in a criminal trial.
‘‘It is a fundamental sentencing principle that a sen-
tencing judge may appropriately conduct an inquiry
broad in scope, largely unlimited either as to the kind
of information he may consider or the source from
which it may come. . . . In keeping with this principle,
we have recognized that [a] sentencing judge has very
broad discretion in imposing any sentence within the
statutory limits and in exercising that discretion he may
and should consider matters that would not be admissi-
ble at trial. . . . Generally, due process does not
require that information considered by the trial judge
prior to sentencing meet the same high procedural stan-
dard as evidence introduced at trial. Rather, judges may
consider a wide variety of information. . . .
‘‘We have cautioned, however, that [t]he trial court’s
discretion . . . is not completely unfettered. As a mat-
ter of due process, information may be considered as
a basis for a sentence only if it has some minimal indic-
ium of reliability. . . . As we have long recognized,
in keeping with due process, a defendant may not be
sentenced on the basis of improper factors or erroneous
information. . . . Further, courts must be concerned
not merely when a sentencing judge has relied on
demonstrably false information, but [also] when the
sentencing process created a significant possibility that
misinformation infected the decision. . . . Nonethe-
less, [a]s long as the sentencing judge has a reasonable,
persuasive basis for relying on the information which
he uses to fashion his ultimate sentence, an appellate
court should not interfere with his discretion. . . .
‘‘In considering a claim that the trial court relied
on unreliable information at sentencing, we therefore
conduct a two-pronged inquiry: first, did the informa-
tion at issue contain some minimal indicium of reliabil-
ity; second, if it did not, did the trial court substantially
rely on this improper information in fashioning its ulti-
mate sentence? . . .
‘‘With respect to the threshold inquiry into reliability,
we note that [t]here is no simple formula for determin-
ing what information considered by a sentencing judge
is sufficiently reliable to meet the requirements of due
process. The question must be answered on a case
by case basis.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) State v. Altajir, 303
Conn. 304, 315–18, 33 A.3d 193 (2012).
Having set forth applicable principles, we turn to the
evidence before the court. At the violation of probation
trial, the defendant’s probation officer, Lee, testified
that prior to drafting an arrest warrant in November,
2014, she warned the defendant that he was in danger
of a violation. Lee testified that the warrant was not
served on the petitioner until October, 2015. She testi-
fied, as well, that, after he was found to be in violation,
she told the defendant that, because of his violation,
he did not have to ‘‘report to probation.’’ Additionally,
Lee testified that the defendant did not make any efforts
with her to turn himself in on the violation of probation
warrant. The court questioned Lee about the delay in
serving the warrant, as follows:
‘‘The Court: Ms. Lee . . . did you file a violation of
probation warrant against this defendant in October,
2014?
‘‘[The Witness]: I believe . . . [November 12, 2014]
was when we decided to go forward with the violation.
‘‘The Court: So when you say you made a decision
to go forward with the violation, do you actually get a
warrant and sort of hold it in abeyance to see how
the defendant responds? I’m just trying to understand
your testimony.
‘‘[The Witness]: Well, we go forward. We write the
warrant, and then it goes to the court to get signed
off on.
‘‘The Court: All right. So that was in October of 2014?
‘‘[The Witness]: November of 2014.
‘‘The Court: All right. . . . And what happened to
the warrant? . . .
‘‘[The Witness]: The warrant will go to our warrant
officer. They make attempts to have it served.
‘‘The Court: So you had a warrant signed back in
2014?
‘‘[The Witness]: [It] was signed . . . .
‘‘[The Prosectutor]: Your Honor, I believe the warrant
was signed by the court on November 28, 2014. . . .
Signed by Judge Clifford.
‘‘The Court: So then what happened to that warrant?
‘‘[The Witness]: The warrant sat, and they made it—
‘‘The Court: Sat where?
‘‘[The Witness]: It sits with our warrant officer. They
try to make attempts to get in contact with the defen-
dant to turn himself in, and they also I believe get in
contact with the local [police departments] to make
attempts to go—
‘‘The Court: But you’re now his probation officer at
this time?
‘‘[The Witness]: I am. Yes.
‘‘The Court: And you told him, you know, the judge
approved the warrant for the violations we’ve gone
through. And . . . that warrant was not served on him
. . . for another [twelve] months?
‘‘[The Witness]: That’s correct.
‘‘The Court: And is that usual?
‘‘[The Witness]: No. Usually they’re served much
quicker.
‘‘The Court: Is there a reason why it wasn’t served
on him for [twelve] months? . . . Did you still hold
back on the warrant to see if he would sort of respond
to the requests and the conditions of his probation
or not?
‘‘[The Witness]: Oh, no, not at all.
‘‘The Court: So it had . . . no connection to that?
‘‘[The Witness]: No.
‘‘The Court: You had a warrant signed in 2014, and
it just so happens it just wasn’t served on him until 2015?
‘‘[The Witness]: Yes.
‘‘The Court: A year later?
‘‘[The Witness]: Yes.
‘‘The Court: Even though you saw him several times
during that time frame?
‘‘[The Witness]: No, I didn’t see him several times. No.
‘‘The Court: Okay. Why didn’t you see him several
times during that time frame?
‘‘[The Witness]: Once the violation is issued . . . his
probation is put on pause. . . .
‘‘The Court: Doesn’t he have the same conditions
of probation even though . . . the warrant is served
upon him?
‘‘[The Witness]: Unless it’s ordered a supervised viola-
tion, which that didn’t occur until the warrant was
served in October of 2015.
‘‘The Court: So then when . . . it’s served upon him,
this defendant, like any other defendant, then [he] is
obliged to comply with the conditions of probation dur-
ing the pendency of the violation; is that correct?
‘‘[The Witness]: Yes.
‘‘The Court: So . . . it sort of [is] in limbo . . . from
October, 2014, until service about [eleven] months
later?
‘‘[The Witness]: Yes.’’
The evidence supports several conclusions. First, the
defendant’s arrest warrant was issued on November 28,
2014, but it was not served on him until October, 2015.
Second, the defendant was aware that he was at risk
of violating his probation, learned that a warrant had
been issued, and did not take any steps to turn himself
in with respect to the warrant. Third, the usual practice
of Lee’s office is to forward arrest warrants to a warrant
officer who, perhaps in conjunction with local law
enforcement, will serve it quickly. Fourth, the lengthy
delay in serving the warrant on the defendant was
unusual and not attributable to Lee or her colleagues.
Additionally, among the findings made by the court in
the dispositional phase of the hearing that the defendant
does not challenge are the court’s findings that, prior
to the time that the violation of probation warrant was
issued, he failed to keep probation informed of his
whereabouts, he continued to ‘‘mov[e] along,’’ and he
was ‘‘very evasive’’ with probation.
On the basis of the foregoing facts, we conclude that
the information on which the court relied satisfied the
requisite standard of reliability. Specifically, the court
reasonably inferred from the facts that the warrant offi-
cer made reasonable efforts to locate the defendant but
was unable to find him and, consequently, it took law
enforcement nearly a year to serve the warrant that
had been issued in November of 2014. There was evi-
dence that the defendant’s whereabouts were not
readily ascertainable. Lee testified that the defendant
was no longer required to comply with the conditions
of his probation between the time that the violation of
probation warrant was issued in November, 2014, until
the time that the warrant ultimately was served on him
in October, 2015. Nonetheless, the evidence supported a
finding that, during the defendant’s probationary period
that commenced in November, 2011, he moved fre-
quently and, contrary to the conditions of his probation,
did not keep probation informed of his whereabouts.
Moreover, after the defendant learned of the warrant,
he did not take any steps to make his whereabouts
known or turn himself in with respect to the warrant.
‘‘The trier may draw whatever inferences from the evi-
dence or facts established by the evidence it deems to
be reasonable and logical.’’ (Internal quotation marks
omitted.) State v. Berger, 249 Conn. 218, 224, 733 A.2d
156 (1999). The defendant has not demonstrated that
the inference drawn by the court was unreasonable or
unjustifiable. The court’s inference, that the warrant
officer was unable to locate the defendant for nearly a
year, was not the product of speculation or conjecture;
it was a logical conclusion on the basis of the evidence.
For the foregoing reasons, we conclude that the
defendant has failed to demonstrate that a constitu-
tional violation exists and that it deprived him of a
fair trial.
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant acknowledges that he also was placed on probation as a
result of his conviction in a separate criminal matter. In a separate probation
revocation proceeding that occurred on May 13, 2016, which took place
following the hearing at issue in the present case, his probation in that
matter was terminated after he admitted that he had violated his conditions
of probation.
2
Prior to his probationary period, the defendant signed a written ‘‘condi-
tions of probation’’ form that set forth standard conditions of probation as
well as the court-ordered special conditions of probation, thereby represent-
ing that his probation officer had reviewed the conditions with him, that
he understood the conditions, and that he would abide by the conditions.
3
The defendant, exercising his right of allocution, admitted that he had
used marijuana during his probationary period, stated that he was trying
to comply with his probation requirements, and asked the court for ‘‘a
little leniency.’’
4
In his principal brief, the defendant also argued that the court erroneously
found and relied on the fact that he had failed to keep probation informed
of his address. In his reply brief, the defendant expressly abandoned this
aspect of his claim.
5
We note that the defendant already has suffered from what he believes
to be the negative effects of incarceration as a result of his being sentenced
in 1999 to a term of incarceration for his commission of the underlying
crimes. We interpret his argument to mean that the additional sentence of
incarceration that resulted from the present probation revocation hearing
caused him further prejudice with respect to employment and his standing
in the community generally.
6
In light of our conclusion that the present appeal falls within the collateral
consequences exception to the mootness doctrine, we need not consider
the defendant’s reliance on the exception for appeals involving issues that
are capable of repetition yet evade review.
7
As reflected in our discussion of the defendant’s argument, part of his
argument is that the court found and relied on the fact that he had ‘‘tried
to elude capture.’’ The court did not expressly find that the defendant
attempted to elude capture. The court found that the warrant officer was
unable to find the defendant and that this had resulted in a lengthy delay
in serving the warrant on him.
8
As modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015),
the Golding doctrine provides that ‘‘a defendant can prevail on a claim of
constitutional error not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the alleged claim of
error; (2) the claim is of constitutional magnitude alleging the violation of
a fundamental right; (3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In the absence of any
one of these conditions, the defendant’s claim will fail. The appellate tribunal
is free, therefore, to respond to the defendant’s claim by focusing on which-
ever condition is most relevant in the particular circumstances.’’ (Emphasis
omitted; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40. ‘‘The
defendant bears the responsibility for providing a record that is adequate
for review of his claim of constitutional error. . . . The defendant also
bears the responsibility of demonstrating that his claim is indeed a violation
of a fundamental constitutional right. . . . Finally, if we are persuaded that
the merits of the defendant’s claim should be addressed, we will review it
and arrive at a conclusion as to whether the alleged constitutional violation
. . . exists and whether it . . . deprived the defendant of a fair trial.’’ (Cita-
tions omitted.) Id., 240–41.