State v. Fowler

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STATE OF CONNECTICUT v. JAMARR FOWLER
(AC 38979)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Syllabus
The defendant, who had been on probation in connection with his conviction
of the crimes of interfering with an officer and forgery in the second
degree, 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 a period of three years. Held:
1. The trial court’s finding that the defendant violated conditions of his
probation by failing to keep probation officers informed of his where-
abouts and to provide probation officers with a valid and verifiable
address was not clearly erroneous and was supported by sufficient
evidence in the record; the evidence in the record demonstrated that,
for approximately seven weeks, probation officers attempted to obtain
a verifiable address for the defendant but that he failed to provide a
valid address despite numerous opportunities to do so.
2. This court having determined that there was sufficient evidence for the
trial court to find that the defendant violated the conditions of his
probation by failing to keep probation officers informed of his where-
abouts and to provide a valid and verifiable address, which was sufficient
to serve as a basis for revoking his probation, it was not necessary for
this court to consider the defendant’s claim that the office of probation
did not have the authority to require him to submit to global positioning
system monitoring, or whether the defendant’s refusal to do so consti-
tuted a violation of the conditions of his probation.
The defendant’s claim that the trial court erred in denying his oral motion
to dismiss was not reviewable, the defendant having failed to brief the
claim adequately.
Argued October 5—officially released November 28, 2017
Procedural History
Information charging the defendant with violation of
probation, brought to the Superior Court in the judicial
district of Stamford-Norwalk, where the court, A., Grog-
ins, J., denied the defendant’s motion to dismiss; there-
after, the matter was tried to the court; judgment
revoking the defendant’s probation, from which the
defendant appealed to this court. Affirmed.
Robert J. McKay, assigned counsel, for the appel-
lant (defendant).
Timothy F. Costello, assistant state’s attorney, with
whom, on the brief, were Richard J. Colangelo, Jr.,
state’s attorney, and Mitchell Rubin, senior assistant
state’s attorney, for the appellee (state).
Opinion
ALVORD, J. The defendant, Jamarr Fowler, appeals
from the judgment of the trial court revoking his proba-
tion and imposing a previously suspended three year
prison sentence. On appeal, the defendant claims that
the trial court improperly (1) found a violation of proba-
tion on the basis of insufficient evidence; (2) deter-
mined that the Office of Probation had authority to
include a probation condition that the defendant must
submit to global positioning system (GPS) monitoring;
and (3) denied the defendant’s motion to dismiss. We
affirm the judgment of the trial court.
The record reveals the following relevant facts.1 On
July 30, 2015, pursuant to a plea agreement, the defen-
dant pleaded guilty to one count of interfering with an
officer in violation of General Statutes § 53a-167a and
one count of forgery in the second degree in violation
of General Statutes § 53a-139. The trial court, White
J., imposed a total effective sentence of three years
incarceration, fully suspended, followed by three years
of probation. That same day, the defendant met with a
probation intake specialist and reviewed the conditions
of his probation, which required, in relevant part, that
he ‘‘[k]eep the probation officer informed of where you
are,’’ ‘‘tell your probation officer immediately about any
change to your . . . address,’’ and ‘‘[d]o not leave the
State of Connecticut without permission from the pro-
bation officer.’’2
At the time of his intake, the defendant informed
Probation Officer Shonda Wright that he had no family
or ties in the state of Connecticut, and that he was
living in a New York homeless shelter prior to his arrest.
Probation Officer Wright told the defendant that proba-
tion officials would investigate transferring his proba-
tion to the state of New York, but only if he provided
a valid and verifiable New York address. Probation Offi-
cer Wright instructed the defendant to contact the pro-
bation office on August 3, 2015, with a verifiable New
York address.
On August 3, the defendant called the probation office
and spoke to Probation Officer Wright. He explained
that he was in New York, homeless, and could not
provide a New York address to facilitate the transfer
of his probation. Probation Officer Wright informed the
defendant that if he could not provide a New York
address, his probation would have to be supervised
in Connecticut.
On August 10, 2015, the defendant called Probation
Officer Wright and informed her that he still did not
have a New York address. He claimed that he was in
New York at the time, but could not provide her with
the address of where he was staying. Probation Officer
Wright again informed the defendant that if he did not
secure a New York address as soon as possible, he
would have to return to Connecticut and be supervised
by Connecticut probation officials.
Because probation officials considered the defendant
to be a ‘‘higher risk’’ probationer due to his failure to
provide a verifiable address and his newly discovered
status as a registered sex offender in New York,3 Chief
Probation Officer Lorraine Rodrigues assumed over-
sight of the defendant’s file on August 14, 2015. On that
date, Chief Probation Officer Rodrigues spoke with the
defendant and reminded him that he was required either
to provide a New York address, or return to Connecticut
to be supervised, and that if he did not do so by August
17, 2015, probation officials would issue a violation of
probation warrant for his arrest. She also advised the
defendant that the decision to accept the transfer of
his probation was ‘‘completely discretionary’’ on the
part of New York probation officials, who would investi-
gate whether any address that he provided was suitable
for supervision. She also informed him that if New York
probation officials rejected the transfer, he would have
to return to Connecticut to be supervised.4
On August 17, 2015, the defendant contacted Proba-
tion Officer Wright and provided her with a New York
address. Probation Officer Wright forwarded the
address to New York probation officials as part of an
application for an interstate transfer. On September
8, New York probation officials notified Connecticut
probation officials that New York had denied the inter-
state transfer request because the provided address was
within 1000 feet of a public school, which was not
permitted due to the defendant’s status as a registered
sex offender. That same day, Probation Officer Wright
informed the defendant that his interstate transfer
request was denied. She directed the defendant to
return to Connecticut by September 10, 2015, to be
supervised by Connecticut probation officials. Proba-
tion Officer Wright described the defendant as ‘‘very
agitated’’ during this phone call. Probation Officer
Wright transferred the call to Chief Probation Officer
Rodrigues, who reiterated the same information to
the defendant.5
On September 10, 2015, the defendant called Chief
Probation Officer Rodrigues. Chief Probation Officer
Rodrigues advised the defendant that he was in New
York without permission, and instructed him to return
to Connecticut by 10 a.m. on September 15, 2015, or
probation officials would issue a violation of probation
warrant.6 Later that day, the defendant called Chief
Probation Officer Rodrigues and stated that he remem-
bered that he had a pending criminal case in New York
and his conditions of release did not permit him to
leave the state. Connecticut probation officials investi-
gated this claim, and discovered that while the defen-
dant did have a pending criminal case in New York, the
court-ordered conditions of his release did not prohibit
him from leaving that state.7
On September 15, 2015, the defendant reported to the
Stamford probation office with his attorney, Benjamin
Aponte. The defendant and Aponte met with Chief Pro-
bation Officer Rodrigues and Chief Probation Officer
Marvin Parsons. At that meeting, the defendant pro-
vided an address in the Bronx, New York. He claimed
that his aunt had an apartment there, and that she would
allow him to take over the lease and reside at the apart-
ment. Chief Probation Officer Parsons asked the defen-
dant for his aunt’s contact information, and the
defendant was unable to provide it. On the basis of the
defendant’s inability to provide contact information,
coupled with New York’s previous rejection of the
defendant’s transfer request due to the defendant’s then
stated New York address, Chief Probation Officer Par-
sons declined at that time to investigate the Bronx
address.8 Chief Probation Officers Parsons and
Rodrigues also informed the defendant that his condi-
tions of release in New York did not bar him from
leaving the state.9 Chief Probation Officers Parsons and
Rodrigues instructed the defendant to provide the name
and address of the hotel10 where he would be staying
that night so that his location could be confirmed, and
also instructed him to appear for a scheduled appoint-
ment the following day. The defendant did not provide
an address that night as instructed.
On September 16, at 5 a.m., the defendant called the
probation office and left a voicemail stating that he was
staying at 20 Hale Drive in Windsor. At Chief Probation
Officer Parsons’ request, two probation officers from
Hartford traveled to the Windsor address to investigate.
The probation officers spoke with a female resident,
who told them that she did not know the defendant
and he was not residing at the address. Subsequently,
the defendant called the probation office and claimed
that a friend, unbeknownst to the friend’s wife, was
allowing him to stay in the back of the Windsor resi-
dence in a shed. The defendant refused to provide con-
tact information for his friend. The defendant was
instructed to bring the information to a scheduled
appointment later that day.
Later that day, one and a half hours late, the defendant
reported to the probation office. At that point, because
the defendant still had failed to provide a valid and
verifiable address, probation officials informed the
defendant that he would be placed on a GPS monitor.
The defendant refused, stating, ‘‘never in a million years
would I agree to go on a GPS monitor.’’ Because the
defendant had been given approximately seven weeks
to provide a valid and verifiable address and failed to
do so, and was considered a higher risk due to his sex
offender status in New York, Chief Probation Officer
Parsons drafted an application for an arrest warrant
for violation of probation when the defendant refused
to submit to GPS monitoring. That same day, the court,
Hon. Richard F. Comerford, Jr., judge trial referee,
signed the warrant and probation officials arrested
the defendant.
During the adjudication phase of the defendant’s vio-
lation of probation hearing, the state called Chief Proba-
tion Officer Parsons to testify and entered five exhibits
into evidence, including a copy of the defendant’s
signed conditions of probation and the violation of pro-
bation warrant. The defendant did not offer any evi-
dence. The trial court, A., Grogins, J., found that the
defendant had violated the conditions of his probation,
specifically that he failed to keep probation apprised
of his whereabouts and failed to provide a valid and
verifiable address to probation. Following the adjudica-
tion phase of the hearing, the court sentenced the defen-
dant to a period of three years incarceration. This
appeal followed.
I
The defendant’s first claim on appeal is that there
was insufficient evidence to support the trial court’s
finding that he violated a condition of his probation.
Specifically, he contends that ‘‘according to the testi-
mony of [Chief] Probation Officer Parsons . . . [he]
did, in fact, keep the probation department informed
of his whereabouts at all times.’’11 We disagree.
‘‘[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 proba-
tion. . . . If the trial 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 defen-
dant’s probationary status should be revoked. . . . To
support a finding of probation violation, the evidence
must induce a reasonable belief that it is more probable
than not that the defendant has violated a condition of
his or her probation. . . . In making its factual determi-
nation, the trial court is entitled to draw reasonable
and logical inferences from the evidence. . . . This
court may reverse the trial court’s initial factual deter-
mination that a condition of probation has been violated
only if we determine that such a finding was clearly
erroneous. . . . A finding of fact is clearly erroneous
when there is no evidence to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
. . . In making this determination, every reasonable
presumption must be given in favor of the trial court’s
ruling. . . . A fact is more probable than not when it
is supported by a fair preponderance of the evidence.’’
(Internal quotation marks omitted.) State v. Sherrod,
157 Conn. App. 376, 381–82, 115 A.3d 1167, cert. denied,
318 Conn. 904, 122 A.3d 633 (2015).
The record reveals sufficient evidence for the court
reasonably to have found that the defendant violated the
conditions of his probation by failing to keep probation
officers informed of his whereabouts and failing to pro-
vide probation officers with a valid and verifiable
address. At the violation of probation hearing, the state
entered into evidence, inter alia, the defendant’s condi-
tions of probation and the violation of probation war-
rant, and also called Chief Probation Officer Parsons
to testify as to the basis for the drafting of the violation
of probation warrant. Chief Probation Officer Parsons
detailed the approximately seven week efforts of proba-
tion officials to obtain a verifiable address for the defen-
dant in either Connecticut or New York. He explained
that probation officials violated the defendant because
‘‘he had been given approximately a month and a half
to provide a valid address, either in the state of New
York or Connecticut and was unable to do so. . . .
[W]e just did not have an established residence for him
and we felt that he was afforded ample opportunity to
provide that.’’ The court credited the state’s evidence
and found that ‘‘after listening to the testimony pre-
sented by the state and reviewing all of the exhibits in
the record provided that the defendant did violate the
conditions of his probation and the state proved that
by a fair preponderance of the evidence and specifically
proved that the defendant did not keep probation
apprised of his whereabouts and that he failed to pro-
vide a valid and verifiable address to probation.’’ Based
on the evidence presented of the defendant’s repeated
failures to provide a valid and verifiable address in
either New York or Connecticut despite numerous
opportunities to do so, we cannot conclude that the
trial court’s finding that the defendant violated the con-
ditions of his probation was clearly erroneous. See State
v. Miller, 83 Conn. App. 789, 795–96, 851 A.2d 367 (suffi-
cient evidence for trial court to find a violation of proba-
tion where probation officer testified that [1] he called
two phone numbers provided by defendant and spoke
with individuals who led him to believe that defendant
was not residing there; and [2] sent letters to two
addresses provided by defendant and both were
returned, one marked ‘‘[d]oesn’t live here’’ [internal quo-
tation marks omitted]), cert. denied, 271 Conn. 911, 859
A.2d 573 (2004); State v. Garuti, 60 Conn. App. 794,
797–98, 761 A.2d 774 (2000) (sufficient evidence for trial
court to find violation of probation where probation
officer testified that when he visited an address pro-
vided by defendant, a woman informed him that defen-
dant ‘‘had never stayed at that address’’ [internal
quotation marks omitted]), cert. denied, 255 Conn. 931,
767 A.2d 102 (2001).
‘‘The weight to be given [to] the evidence and [to]
the credibility of witnesses [is] solely within the deter-
mination of the trier of fact. . . . The court performed
its duty, and we will not usurp its function.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Shakir, 130 Conn. App. 458, 469, 22 A.3d 1285, cert.
denied, 302 Conn. 931, 28 A.3d 345 (2011). In light of
this record, we conclude that there was sufficient evi-
dence to find that the defendant violated his probation.12
II
The defendant next claims that the trial court improp-
erly determined that the office of probation had author-
ity, pursuant to General Statutes § 53a-30 (b),13 to
require him to submit to GPS monitoring during his
probationary period. He argues that ‘‘[t]he probation
department did not have authority to add this condition
since it was not included as part of the defendant’s plea
agreement, which the court, White, J., accepted,’’ and
that General Statutes § 53a-30 (c) ‘‘requires a hearing
and a showing of good cause before any additions or
enlargements can be made to his condition of proba-
tion.’’ He further contends that ‘‘the refusal to wear a
GPS monitor, when not a standard or special condition
ordered by the court at his plea of July 30, 2015, does
not constitute a violation of his probation.’’ We need
not address this claim.
‘‘[A] violation of any one condition of probation
would suffice to serve as a basis for revoking the defen-
dant’s probation. . . . Our law does not require the
state to prove that all conditions alleged were violated;
it is sufficient to prove that one was violated.’’ (Internal
quotation marks omitted.) State v. Lanagan, 119 Conn.
App. 53, 62, 986 A.2d 1113 (2010). Given that we have
already concluded that there was sufficient evidence
for the trial court to find that the defendant violated
the conditions of probation by failing to keep probation
officers informed of his whereabouts and to provide
a valid and verifiable address, we need not consider
whether the office of probation had authority to require
the defendant to submit to GPS monitoring, or whether
the defendant’s refusal to do so constituted a violation
of the conditions of his probation. Because such a deter-
mination by this court would not affect the disposition
of this appeal, we decline to reach this claim.14
III
The defendant’s final claim is that the trial court erred
in denying his oral motion to dismiss. Because ‘‘[h]e
offers no analysis or authority in support of this claim
. . . we decline to review it because it is inadequately
briefed.’’ State v. Leary, 51 Conn. App. 497, 499–501,
725 A.2d 328 (1999). The defendant devotes less than
one page of his brief to this claim, which provides little
more than a factual account of his oral motion to dis-
miss raised at the violation of probation hearing, and
includes neither argument nor analysis of his passing
citation to case law. See State v. T.R.D., 286 Conn. 191,
213–14 n.18, 942 A.2d 1000 (2008) (declining to review
claim as inadequately briefed where defendant
‘‘devoted a mere three quarters of a page in his brief
to [the] claim, and failed to explicate adequately’’ the
basis of his argument); State v. Duteau, 68 Conn. App.
248, 261–62, 791 A.2d 591 (declining to review claim as
inadequately briefed where defendant failed to ‘‘provide
either legal authority or analysis to support this claim’’),
cert. denied, 260 Conn. 939, 835 A.2d 58 (2002). ‘‘We are
not required to review issues that have been improperly
presented to this court through an inadequate brief.
. . . Analysis, rather than mere abstract assertion, is
required in order to avoid abandoning an issue by failure
to brief the issue properly.’’ (Internal quotation marks
omitted.) State v. Leary, supra, 499. Because the defen-
dant’s claim is inadequately briefed, we decline to
address it.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Although the trial court did not make detailed factual findings as to each
of the facts discussed herein, it did state on the record that ‘‘I also find I
credited the testimony and the exhibits heard.’’ The grounds for the trial
court’s conclusion that the defendant violated his probation are adequately
shown in the record before this court.
2
The defendant signed the conditions of probation to acknowledge that
he read and understood them, that a probation officer had reviewed them
with him, and that he would follow them.
3
An August 5, 2015 criminal background check revealed that the defendant
was registered as a sex offender in New York, and that he was listed as
homeless on New York’s sex offender registry.
4
During this phone call, Chief Probation Officer Rodrigues informed the
defendant that if he could not find housing in Connecticut, probation officials
would investigate placing him in transitional housing or a local shelter.
5
Later that day, the defendant called Connecticut’s central probation
office stating that he did not understand why New York had denied his
transfer request. He claimed that New York probation officials previously
supervised him at the address he provided and that the address had been
‘‘preapproved.’’ Probation officials contacted New York and learned that,
in fact, the defendant had never been under probation or parole supervision
in New York.
6
Chief Probation Officer Rodrigues described the defendant as ‘‘argumen-
tative’’ during this call. He asserted that he had just started a new job in
New York, did not have the finances to return to Connecticut, did not have
a place to stay in Connecticut, and did not want to return to Connecticut.
Chief Probation Officer Rodrigues informed the defendant that if his employ-
ment was verified, probation officials would consider allowing him to travel
back and forth to New York for work. Chief Probation Officer Rodrigues
again informed the defendant that probation could refer him to transitional
housing or a local shelter. The defendant rejected Chief Probation Officer
Rodrigues’ offer of temporary housing.
7
Rather, the defendant and his bail bondsman on the New York matter
agreed that he would not leave New York.
8
Chief Probation Officer Parsons did, however, advise the defendant that
probation officials would investigate whether the Bronx address was suitable
for transferring his case if he provided contact information for his aunt.
9
Chief Probation Officers Parsons and Rodrigues offered to notify the
bondsman that the defendant had legal obligations in Connecticut. They
also informed the defendant that probation officials would permit him to
travel back and forth to New York for any court appearances there, as long
as the appearances could be verified.
10
Chief Probation Officers Parsons and Rodrigues offered to secure the
defendant housing at a local shelter in Stamford, but the defendant declined
to stay at a local shelter and instead requested information about hotels in
the Stamford area. Knowing, based on the defendant’s representations, that
he was homeless, Chief Probation Officer Rodrigues provided the defendant
with a list of low budget hotels and motels. The defendant rejected that list
as unsuitable and stated that he would find his own housing.
11
The defendant also argues that he was ‘‘allowed by the probation depart-
ment to leave the state of Connecticut to find an address in the state of
New York’’ and ‘‘constantly reported in person or by phone to a probation
officer as directed by probation.’’ The trial court only found that the defen-
dant had violated the condition that he keep probation informed of his
whereabouts and provide probation with a valid and verifiable address.
Accordingly, we need not address the defendant’s arguments as to the
conditions of his probation prohibiting him from leaving Connecticut without
permission and requiring him to report to probation as directed.
12
The defendant also challenges the trial court’s revocation of his proba-
tion and imposition of the previously suspended three year prison sentence
as an abuse of discretion. In making the determination of whether a defen-
dant’s probation should be revoked, ‘‘the trial court is vested with broad
discretion.’’ (Internal quotation marks omitted.) State v. Sherrod, supra, 157
Conn. App. 382. ‘‘On appeal, we will disturb a trial court’s sentencing decision
only if that discretion clearly has been abused.’’ State v. Shakir, supra, 130
Conn. App. 470. In the sentencing phase of the hearing, the trial court
concluded: ‘‘I find that based on the credible testimony presented that you
had numerous opportunities and time provided to you to follow probation’s
direction and keep them apprised of your whereabouts and give them a
valid and verifiable address and you didn’t do that—that you during the
time that the probation staff was giving you these opportunities you were
not cooperative, you did not cooperate with them, you did not comply, you
were argumentative and combative, and once again you didn’t fulfill the
ultimate goals of probation and probation’s purposes are exhausted.’’ In
light of the record, we conclude that the trial court did not abuse its discretion
in revoking the defendant’s probation and sentencing him to a period of incar-
ceration.
13
General Statutes § 53a-30 (b) provides: ‘‘When a defendant has been
sentenced to a period of probation, the Court Support Services Division
may require that the defendant comply with any or all conditions which the
court could have imposed under subsection (a) of this section which are
not inconsistent with any condition actually imposed by the court.’’
General Statutes § 53a-30 (a) (14) provides in relevant part: ‘‘When impos-
ing sentence of probation or conditional discharge, the court may, as a
condition of the sentence, order that the defendant . . . be subject to elec-
tronic monitoring, which may include the use of a global positioning system.’’
14
We also decline to address this argument on the basis that the trial
court made no finding regarding the office of probation’s statutory authority
to require the defendant to submit to GPS monitoring. See, e.g., DeFeo v.
DeFeo, 119 Conn. App. 30, 32 n.3, 986 A.2d 1099 (2010) (declining to address
argument that trial court improperly found that plaintiff did not receive
notice of foreclosure where court made no such finding).