State v. Pace

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STATE OF CONNECTICUT v. PHILLIP PACE
(AC 36798)
Gruendel, Sheldon and West, Js.
Argued March 9—officially released May 26, 2015
(Appeal from Superior Court, judicial district of
Stamford-Norwalk, geographical area number one,
Hudock, J.)
Mark J. Welsh, senior assistant public defender, for
the appellant (defendant).
Leon F. Dalbec, Jr., senior assistant state’s attorney,
with whom, on the brief, were David I. Cohen, state’s
attorney, and Michelle Manning, assistant state’s attor-
ney, for the appellee (state).
Opinion
PER CURIAM. The defendant, Phillip Pace, appeals
from the judgment of the trial court finding him in
violation of probation pursuant to General Statutes
§ 53a-32. The defendant claims that the court improp-
erly permitted hearsay testimony regarding his involve-
ment in multiple drug transactions. We conclude that
issue is moot and, accordingly, dismiss the appeal.
In 2011, the defendant pleaded guilty to possession
of a controlled substance with intent to sell in violation
of General Statutes § 21a-277 (a). The court sentenced
the defendant to a term of five years incarceration,
execution suspended after nine months, followed by a
three year term of probation. The conditions of his
probation required, inter alia, the defendant to ‘‘not
violate any criminal law of the United States, this state
or any other state or territory.’’
During his probationary period, the defendant was
arrested and charged with various criminal offenses of
this state. As a result, the state filed an information
alleging that the defendant violated the terms of his
probation due to, inter alia, his sale of narcotics in
violation of General Statutes § 21a-278 (b) and his par-
ticipation in a conspiracy to commit the sale of narcot-
ics in violation of General Statutes §§ 53a-48 (a) and
21a-278 (b). Following an evidentiary hearing, the court
found that the defendant had violated the terms of his
probation. It then revoked his probation and sentenced
him to a term of fifty-one months incarceration. From
that judgment, the defendant appealed to this court.
At the commencement of oral argument, counsel for
the defendant apprised this court that, subsequent to
the filing of this appeal, the defendant had pleaded
guilty to multiple felonies that formed the basis for
the violation of probation proceeding.1 The state thus
submits, and counsel for the defendant does not dis-
pute, that the present appeal is moot.
‘‘Mootness implicates a court’s subject matter juris-
diction. . . . For a case to be justiciable, it is required,
among other things, that there be an actual controversy
between or among the parties to the dispute . . . .
[T]he requirement of an actual controversy . . . is
premised upon the notion that courts are called upon
to determine existing controversies, and thus may not
be used as a vehicle to obtain advisory judicial opinions
on points of law. . . . Moreover, [a]n actual contro-
versy must exist not only at the time the appeal is taken,
but also throughout the pendency of the appeal. . . .
When, during the pendency 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.’’ (Citations omitted; internal
quotation marks omitted.) State v. T.D., 286 Conn. 353,
361, 944 A.2d 288 (2008). ‘‘[B]ecause [a] determination
regarding a . . . court’s subject matter jurisdiction is
a question of law, our review is plenary.’’ (Internal quo-
tation marks omitted.) State v. Alexander, 269 Conn.
107, 112, 847 A.2d 970 (2004).
In State v. Singleton, 274 Conn. 426, 439, 876 A.2d 1(2005), our Supreme Court held that ‘‘[w]here, subse-
quent to a finding of violation of probation, a defendant
is criminally convicted for the same conduct underlying
the violation of probation, his appeal from that judg-
ment of violation of probation is rendered moot because
there is no longer any live controversy about whether
he engaged in the conduct for which his probation was
violated.’’ The court subsequently clarified that a con-
troversy remains when a defendant timely appeals such
a conviction. As it explained, ‘‘[i]f a defendant has been
convicted of criminal conduct, following either a guilty
plea, Alford plea or a jury trial, and the defendant does
not challenge that conviction by timely appealing it,
then the conviction conclusively establishes that the
defendant engaged in that criminal conduct. An appeal
challenging a finding of violation of probation based
on that conduct is, therefore, moot. When, however,
the defendant has pursued a timely appeal from a con-
viction for criminal conduct and that appeal remains
unresolved, there exists a live controversy over whether
the defendant engaged in the criminal conduct, and an
appeal challenging a finding of violation of probation
stemming from that conduct is not moot.’’ (Footnote
omitted.) State v. T.D., supra, 286 Conn. 366–67.
In the present case, the defendant on January 5, 2015,
pleaded guilty to the offenses of sale of narcotics in
violation of § 21a-278 (b), conspiracy to commit the
sale of narcotics in violation of §§ 53a-48 (a) and 21a-
278 (b), and criminal possession of a pistol or revolver in
violation of General Statutes § 53a-217c. The defendant
has not appealed from that judgment of conviction.2 As
a result, no live controversy remains as to whether the
defendant engaged in the conduct that gave rise to his
violation of probation. We therefore conclude that his
claim regarding the propriety of certain testimony
offered during the violation of probation hearing is
moot.
The appeal is dismissed.
1
Defense counsel stated: ‘‘As an officer of the court, I have some informa-
tion that I need to convey to the court . . . . After the briefs were filed,
on January 5, 2015, [the defendant] in Norwalk Superior Court pled guilty
. . . to two counts of sale of narcotics . . . one count of conspiracy to sell
narcotics . . . [and] one count criminal possession of a weapon.’’ Defense
counsel further indicated that he confirmed those convictions by reviewing
‘‘the judicial website as well.’’ A review of docket numbers S20N-CR13-
0134728-S, S20N-CR13-0134727-S, S20N-CR13-0134730-0 and S20N-CR13-
0134729-S on the judicial branch website verifies the accuracy of coun-
sel’s representation.
2
‘‘It is well established that this court can take judicial notice of facts
contained in the files of the Superior Court.’’ (Internal quotation marks
omitted.) State v. Santiago, 142 Conn. App. 582, 592 n.12, 64 A.3d 832, cert.
denied, 309 Conn. 911, 69 A.3d 307 (2013).