195 Conn. 303 | Conn. | 1985
Lead Opinion
This case arises out of an incident on January 17,1982, when a woman was abducted, raped and robbed by several youths in the North Haven area. The defendant was fifteen years old at the time of the offense and, therefore, a “child” whose offenses would ordinarily be treated as “juvenile matters.” General Statutes §§ 46b-120, 46b-121. The crimes of sexual assault in the first degree, kidnapping in the first degree, larceny in the second degree and robbery in the second degree resulting from the January 17,1982 incident were alleged as the basis for the charges of delinquency against the defendant. See General Statutes § 46b-145. An additional ground alleged was the defendant’s escape from custody at a juvenile detention facility in which he had been held prior to the incident. The court granted the motion of the state to transfer the case to the regular criminal docket pursuant to General Statutes § 46b-126.
In exercising its constitutional authority to define the jurisdiction of the courts, the legislature has generally limited this court to “[ajppeals from final judgments or actions of the superior court.” General Statutes §§ 51-197a, 52-263; see Conn. Const., amend. XX; Styles v. Tyler, 64 Conn. 432, 451-53, 30 A. 165 (1894); but see General Statutes § 52-265a; Laurel Park, Inc. v. Pac, 194 Conn. 677, 678-79 n.1, 485 A.2d 1272 (1984). “In a criminal case, the imposition of sentence is the final judgment of the court.” State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). “Interlocutory rulings in criminal cases generally are not appeal-able.” State v. Spendolini, 189 Conn. 92, 93, 454 A.2d 720 (1983). Such rulings, if erroneous, may be the basis for relief only when an appeal is ultimately taken after final judgment has been rendered. Practice Book § 3000.
The defendant relies principally upon the second Curcio alternative, claiming that the transfer order so concludes his statutory rights to treatment as a juvenile “that further proceedings cannot affect them.” He appears to recognize that, if the transfer order should ultimately be found erroneous upon appeal after sentence has been imposed, the case could be remanded for further proceedings in the juvenile division. He maintains, however, that the element of privacy afforded by a juvenile proceeding could not be restored
Under circumstances similar to those presented here, initially we were persuaded to allow an appeal from the denial of an application for youthful offender treatment because of the deprivation of the statutory right to a private hearing that would be irreparably lost by the public trial held following denial of the application. State v. Bell, supra. Upon reconsideration, however, though we recognized that ‘‘[ojnce the defendant undergoes a public trial or is detained with the general jail population, his privacy cannot be restored by a subsequent private trial or by subsequent segregation detention,” we overruled our earlier decision, holding the denial of an application for youthful offender treatment not to be immediately appealable. State v. Longo, 192 Conn. 85, 91, 469 A.2d 1220 (1984). In the closely analogous situation where an application for accelerated rehabilitation is denied we have similarly dismissed an appeal from such an interlocutory order. State v. Spendolini, supra; see State v. Parker, supra. We have not viewed the youthful offender or the accelerated rehabilitation statutes, when applicable, as creating a “right not to be tried” that can be vindicated only by allowing interlocutory appeals from denials of applications for these special procedures. State v. Spendolini, supra, 96. Such a right has been recognized only where the right to protection against double jeopardy is involved, because that constitutional right not only protects against being twice punished but also “is a guarantee against being twice put to trial for the same offense.” (Emphasis in original.) Abney v. United States, 431 U.S. 651, 661, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). Accordingly, we have entertained interlocutory appeals raising claims of infringement of the protection against dou
We have been disinclined, however, to extend the privilege of an interlocutory appeal in criminal cases beyond the double jeopardy circumstance. This reluctance stems principally from our concern that to allow such appeals would greatly delay the orderly progress of criminal prosecutions in the trial court, as vividly illustrated in the present instance where more than two years have elapsed while this appeal has been pending.
The practical considerations which have led us to dismiss interlocutory appeals from the denial of applications for youthful offender treatment apply with virtually equal force to the transfer of this defendant from the juvenile division to the regular criminal session of the Superior Court. Although the consequences of a public trial and incarceration with the general prison population may be more serious for a youth below the age of sixteen, ordinarily treated as a juvenile, as compared to one who is seventeen and eligible for treatment as a youthful offender, the statutory criteria for a transfer order require the trial court to focus directly upon this potential for harm by requiring findings that “(2) the child is not amenable to treatment in any institution or state agency or other available facility designed for the care and treatment of children to which said court may effect placement of such child which is suitable for his care or treatment and (3) the sophistication, maturity and previous adjudications of the juvenile are such that the facilities used for regular criminal sessions of the superior court provide a more effective setting for the disposition of the case and the institutions to which said court may sentence a defendant sixteen years of age or over are more suitable for the care and treatment of such child.” General
The defendant points to a refinement of the second Curdo alternative recently articulated in Longo: “In order to satisfy the second prong of the Curdo test the defendant must do more than show that the trial court’s decision threatens him with irreparable harm. The defendant must show that that decision threatens to abrogate a right that he or she then holds.” (Emphasis in original.) Id., 91. It is claimed here that under the statutory structure pertaining to persons under sixteen years of age accused of crime the defendant “holds” a right to be prosecuted only as a juvenile and that this right persists until his juvenile status has been
The appeal is dismissed.
In this opinion Peters, C. J., and Dannehy, J., concurred.
“[General Statutes (Rev. to 1981)] Sec. 46b-126. (Formerly Sec. 51-307) CHILD CHARGED WITH A CLASS A FELONY OR SERIOUS JUVENILE OFFENSE TRANSFERRED TO REGULAR CRIMINAL DOCKET, WHEN, (a) The Court shall hold a transfer hearing to determine whether it is appropriate to transfer and may transfer from the docket for juvenile matters to the regular criminal docket of the superior court any child referred for the commission of a class
The trial court did hold an evidentiary hearing in determining whether the second and third criteria for a transfer under § 46b-126, amenability to treatment in a juvenile facility and “sophistication” warranting the “more effective setting” of the regular criminal session of the Superior Court, had been satisfied. In refusing such a full hearing in respect to the first criterion, probable cause to believe that the defendant had committed the acts charged, the trial court followed the procedure found to satisfy constitutional requirements for custodial detention. Gerstein v. Pugh, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54 (1975). The court thus relied wholly on the affidavits attached to the arrest warrants in the absence of a preliminary showing by the defendant challenging any of the material statements in the affidavits. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The court concluded that the provision of § 46b-126 requiring that the requisite findings with respect to the three criteria be made “after a hearing” meant, in respect to the determination of probable cause, that only a hearing satisfying constitutional requirements for sustaining an arrest was necessary. It was also held that General Statutes
The trial court did not have the benefit of the subsequent legislative history concerning a proposal in 1983 to substitute the word “proceeding” for the word “hearing” in § 46b-126. The bill proposing the substitution was amended on the floor of the General Assembly, where Representative Richard D. Tulisano explained the import of this action: “Mr. Speaker, the amendment reinstates the word ‘hearing’ rather than ‘proceeding’ in the file copy. After due consideration, going to the word ‘hearing’ has had lots of interpretations in court decisions and it really means the due process hearing rather than a proceeding. And, rather than leave that vague, on due consideration, we think it would be proper to do that.
“We also have made some other technical changes. We removed, however, the standard that was in there that said probable cause sufficient to support the issuance of a search warrant. And allowing a full hearing. It would require that the parties be before the court and not rely just on written testimony.” 26 H. R. Proe., Pt. 17, 1983 Sess., p. 6036. We have previously discussed the implication of such subsequent legislative action. See Lee v. Board of Education, 181 Conn. 69, 75, 434 A.2d 333 (1980).
The transfer order was entered on August 24,1982. The defendant was fifteen years of age at the time of the offenses, January 17,1982, and has reached the age of eighteen at the present time.
The confidentiality of juvenile records and proceedings established by General Statutes §§ 46b-122 and 46b-124 cannot eliminate the publicity that frequently attends the commission of serious juvenile offenses, such as those which are transferable to the regular criminal docket pursuant to §§ 46b-126 and 46b-127. By prohibiting disclosure of records and proceedings in juvenile matters, §§ 46b-122 and 46b-124 do, however, curtail the additional publicity that a public trial would generate. The existence of statutes intended to protect juveniles from publicity concerning their crimes does not prevent the press from disclosing any information which may have come into its possession. Near v. Minnesota, 283 U.S. 697, 718-20, 51 S. Ct. 625, 75 L. Ed. 1357 (1931). These statutes, therefore, do not completely prevent or abolish publicity in juvenile cases, but by restricting accessibility to juvenile records and proceedings may reduce the amount of publicity generated.
General Statutes (Rev. to 1981) § 46b-131 provides generally that a juvenile offender shall not be “confined in a community correctional center or lockup, or in any place where adults are or may be confined Although the protection afforded by such statutorily mandated segregation ceases upon effectuation of a transfer order pursuant to § 46b-126, it does not follow that a transferred juvenile offender must necessarily be held while awaiting trial in a nonjuvenile facility, such as an adult prison. The commissioner of correction upon acquiring custody of a transferred juvenile may transfer him “to any other appropriate state institution with
The concern of the dissenters that the right of a juvenile to segregation “will be lost irreparably” unless appeals from transfer orders are permitted does not take into account the responsibility of the commissioner of correction under § 18-87 to transfer to more appropriate detention facilities, such as those operated by the department of children and youth services, youths within his custody whose “welfare or health” require it. This responsibility is not diminished simply because the commissioner must be accorded a reasonable discretion in determining whether such a transfer is necessary. It would be incongruous to construe the “may transfer” phrase in § 18-87 to give the commissioner of correction an unbridled discretion not to make such a transfer once he has found that “the welfare or health of the inmate requires it.” Though the right to statutorily mandated segregation is suspended while a juvenile transferred to the regular criminal docket is awaiting trial, it cannot be assumed that the commissioner of correction will not select an appropriate facility for his confinement during that period in accordance with his statutory authority and duty.
We are aware of the existence of a substantial body of law created in other jurisdictions pertaining to the immediate appealability of juvenile transfers. We do not find these cases to be very helpful, however. “There is no discernable pattern in the procedures of the various States as to the reviewability of such orders, and because the matter depends so largely upon the varying provisions of the applicable statutes, nothing is to be gained by a detailed analysis of the authorities from other jurisdictions.” People v. Jilea, 43 Ill. 2d 145, 148, 251 N.E.2d 529 (1969).
Dissenting Opinion
dissenting. I agree with Justice Parskey that under the second prong of State v. Curcio, 191 Conn. 27, 31, 463 A.2d 566 (1983), “a juvenile defendant does have a right which will be lost irreparably if the trial court’s order granting the motion to transfer is allowed to stand without immediate appel
While I believe that the transfer order is a final judgment within the rationale given by Justice Parskey, I
The second reason is that I believe we should align ourselves with the great number of states that allow direct appeals from orders transferring juvenile matters for criminal proceedings.
As I noted initially, the underlying crime charged is a serious one and it remains to be evaluated in another forum, but even those circumstances do not, in my opinion, justify denying review now of the statutorily conferred rights involved. I recognize that there is a firm policy, with good reason, against interlocutory or piecemeal appeals in both criminal and civil cases. See, e.g., Abney v. United States, 431 U.S. 651, 656-57, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977); State v. Powell, 186 Conn. 547, 551, 442 A.2d 939, cert. denied sub nom. Moeller v. Connecticut, 459 U.S. 838, 103 S. Ct. 85, 74 L. Ed. 2d 80 (1982). Nevertheless, I believe those concerns are outweighed by addressing this matter now before any trial. We are dealing with rights conferred by a thoughtfully considered statutory scheme. We are dealing with a significant change of status, i.e., from juvenile to adult. We are dealing with a matter jurisdictionally distinct from the potential adult criminal proceeding. We are not dealing, as in many interlocutory appeals, with the interruption of a trial in progress. We are not dealing with the panoply of ordinary pretrial interlocutory-review requests. We are dealing with rights, not privileges, that will be irretrievably lost if
Although I dissent and would reach the merits, I conclude, under the circumstances, that I need not discuss them. See State v. Longo, supra, 98.
Accordingly, I dissent.
In an attempt to suggest that the statutory right to a private hearing under General Statutes § 46b-122 is not really nullified by their opinion, the majority points to General Statutes § 46b-124. While recognizing, as they must, that their position does result in publicity, they nevertheless argue that § 46b-124 by prohibiting disclosure of records and proceedings in juvenile matters does “curtail the additional publicity that a public trial would generate.” Two points should be made to counter this “justification.” First, as one court said: “[I]n common parlance, or in law composition, the word ‘curtail’ has no such meaning as ‘abolish.’ ” State v. Edwards, 207 La. 506, 511, 21 So. 2d 624 (1945). Rather, it means “ ‘to cut off the end, or any part, of; hence to shorten; abridge; diminish; lessen; reduce.’ ” Id. Second, the statutory right to a private hearing in § 46b-122 does not talk at all in terms of relativity, of something is to be diminished, lessened or reduced. It confers a right that is not to be diluted, let alone nullified.
This transfer order falls squarely within the collateral order exception articulated in Cohen v. Beneficial Loan Corporation, 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). In Cohen, the United States Supreme Court explicated it thus: “This decision [for which appellate review was sought] appears to fall in that small class which finally determine claims of'right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Cohen v. Beneficial Loan Corporation, supra, 546. The Cohen “collateral order” rationale has been applied to juveniles in the criminal area. See, e.g., In re John Doe I, 50 Hawaii 537, 444 P.2d 459 (1968); State v. Evangelista, 134 N. J. Super. 64, 338 A.2d 224 (1975); In re Doe II, 86 N.M. 37, 519 P.2d 133 (1974).
Dissenting Opinion
dissenting. Appeals may be taken to this court from final judgments of the superior court. General Statutes § 51-197a. Ordinarily, in a criminal case, the imposition of sentence is the final judgment of the court. State v. Parker, 194 Conn. 650, 652, 485 A.2d 139 (1984); State v. Grotton, 180 Conn. 290, 293, 429 A.2d 871 (1980). There are certain interim orders, however, which are also final judgments. In State v. Curcio, 191 Conn. 27, 463 A.2d 566 (1983), this court established a two-pronged test to determine which interim orders are final judgments. We there stated (p. 31) that an interim order is a final judgment if (1) it terminates a separate and distinct proceeding or (2) it so concludes the rights of the parties that further proceedings cannot affect them. I agree with the majority that the motion to transfer the case of a juvenile to the regular criminal docket is not a separate and distinct proceeding. State v. Parker, supra. Our differences revolve around the second Curcio prong. In my view a juvenile defendant does have a right which will be lost irreparably if the trial court’s order granting the motion to transfer is allowed to stand without immediate appellate review.
I
The fact that a defendant has an actual right, whether constitutional or statutory, does not mean that he is entitled to immediate review of its denial. The test is whether absent immediate review the right cannot be
There are cases, few in number, in which an appeal at an interim stage of the prosecution must be allowed if the defendant’s legal right, because of its nature, is to be vindicated at all. One such case involves double jeopardy. Abney v. United States, 431 U.S. 651, 97 S. Ct. 2034, 52 L. Ed. 2d 651 (1977). The reasoning here is that the rights conferred on a criminal accused by the double jeopardy clause, namely the right not to be placed in jeopardy a second time, would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. Id., 660. Another case involves the rights conferred upon legislative officials by the speech and debate clause of the constitution of the United States. United States v. Helstoski, 442 U.S. 477, 99 S. Ct. 2432, 61 L. Ed. 2d 12 (1979); Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L. Ed. 2d 577 (1967). The policy consideration here is that the speech or debate
Any person under sixteen years of age is a “child”; General Statutes § 46b-120; whose offenses may not be prosecuted in the superior court; § 46b-145; but instead are to be processed as juvenile matters. § 46b-121. An offense, which if committed by an adult would be a crime, is to be regarded as a delinquency if committed by a child. § 46b-145. A juvenile who is charged with a delinquency has two important statutory rights, namely, the right to a private hearing; § 46b-122; and, if incarcerated, the right to be segregated from adult criminals. § 46b-131. See State v. Longo, 192 Conn. 85, 90-91, 469 A.2d 1220 (1984); State v. Bell, 179 Conn. 98, 99, 425 A.2d 574 (1979). It is to state the obvious to observe that both of these rights would be lost irreparably by the transfer of a juvenile’s case to the regular criminal docket. Once subjected to a public trial the juvenile’s right of privacy has not merely been infringed; it has been shattered. And once a juvenile has been mingled with adult criminals, in some cases possibly as long as two to three years, while his criminal case winds its way through the trial and appellate process, he will have been exposed to the very risk that segregated confinement is designed to avoid. Curcio posits that any ruling which so concludes the rights of a party that fur
In State v. Longo, supra, we held that the denial of an application for youthful offender status was not a final judgment. Longo involved a potential rather than an actual right. Reasonable people may differ over whether the rule of finality encompasses both potential and actual rights. But where, as in this case, the issue involves the abrogation of actual rights the only question that remains is whether the right is capable of being vindicated by a postconviction appeal. If it cannot, the second Curdo alternative has been satisfied and appeal, is then a matter of course.
Although the situations warranting interlocutory appeal in criminal cases are rare, it is inaccurate to refer to them as exceptions to the final judgment rule. They are in fact examples of it. Curdo prescribed the litmus tests for ascertaining what interlocutory orders are final judgments. Once either test is satisfied the order is a final judgment and the appeal from that order is a matter of statutory right. If neither of the Curdo tests is satisfied, the order is not a final judgment and there is no right of appeal because the legislature has not authorized a right of appeal from interlocutory orders in criminal cases.
Although the second Curdo alternative has been satisfied in this case, the majority nevertheless denies the juvenile defendant an interlocutory appeal. The rationale for this curious decision is that others similarly situated have also been denied an interlocutory review and the potential for harm from an erroneous decision in this case is no greater in kind or degree from the others to warrant a different result here. The trouble with this rationale is that its focus is misplaced. The
II
Addressing the merits, General Statutes § 46b-126 provides that any child who has attained the age of fourteen and who has been charged, inter alia, with the commission of a class A felony may have his case transferred to the regular criminal docket provided that the court after investigation and a hearing has made written findings that there is probable cause to believe that (1) the child has committed the acts for which he is charged; (2) the child is not amenable to treatment in a state institution designed for children; and (3) because of his sophistication, maturity and previous juvenile adjudications the facilities used for regular criminal sessions of the superior court provide a more effective set
A “hearing” has been defined as a “ [proceeding of relative formality (though generally less formal than a trial), generally public, with definite issues of fact or of law to be tried, in which witnesses are heard and parties proceeded against have right to be heard, and is much the same as a trial and may terminate in a final order.” Black’s Law Dictionary (5th Ed.) p. 649. “Our cases consistently recognize the generally adversarial nature of a proceeding considered a ‘hearing,’ in which witnesses are heard and testimony is taken.” Rybinski v. State Employees’Retirement Commission, 173 Conn. 462, 470, 378 A.2d 547 (1977).
In construing language contained in a statute, commonly approved usage should control. State v. Antrum, 185 Conn. 118, 122, 440 A.2d 839 (1981). Furthermore “the principle of construction everywhere applied . . . [is] that when a statute uses a word in a certain sense, it is to be presumed to have been used in the same sense in all other parts of the statute wherever it occurs.” Beacon Falls v. Seymour, 44 Conn. 210, 217 (1876). It follows that absent a context showing a contrary meaning, the “hearing” referred to in the statute is an evidentiary hearing. In any event, there is nothing in the statute to suggest that the type of hearing to be held respecting the first criterion is to be any different from the hearing with respect to the other criteria. I would, therefore, set aside the judgment and remand the case for further proceedings consistent with this ©pinion.