3 Conn. App. 410 | Conn. App. Ct. | 1985
The trial court, after a hearing pursuant to General Statutes § 53a-32, found the defendant in violation of one of the conditions of her probation and rendered judgment imposing the defendant’s original sentence of sixty days imprisonment, which had been suspended. The defendant appeals,
The defendant, after a jury trial, was found guilty of breach of the peace, a violation of General Statutes § 53a-181. The offense arose from a conflict between the defendant and her ex-husband’s present wife. The condition of probation here involved was that the defendant receive “some type of therapeutic or psychiatric counseling ... if recommended by the probation officer.”
On April 13, 1982, the trial court, Wagner, J., conducted a hearing on the violation of probation, and the same hearing was expanded to include the defendant’s motion for removal of the condition. The court granted the latter motion “on an interim basis reserving my right to reinstate it.” At that hearing, the defendant introduced into evidence a psychological assessment, dated March 9, 1982, by a psychologist of the court’s diagnostic clinic, which concluded that nothing which the author knew, either historically or as a result of observation, suggested that the defendant had ever labored under any gross psychiatric symptomatology and that there was no evidence as of the time of the interview, March 5,1982, to suggest that she was psychiatrically disturbed or in need of psychiatric intervention.
The constitutional claim of the defendant was not raised below and any review of it is limited. Practice Book § 3063; State v. Kurvin, 186 Conn. 555, 564-65, 442 A.2d 1327 (1982). The defendant has not advanced an exception to this general rule under State v. Evans, 165 Conn. 61, 69-70, 327 A.2d 576 (1973). Furthermore, the cases cited by her, Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980), and Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756, 36 L. Ed. 2d 656 (1973), are inapposite. Those cases involved entitlement to a hearing, entitlement to counsel and notification of the hearing. Here, the defendant had a hearing, was notified and was represented by counsel.
The question for appellate review is whether the trial court abused its discretion in revoking probation and invoking the original sentence, after finding a historical violation of one of the conditions. At the time of the finding of the violation, the only evidence as to the underlying need for the condition was that it was not necessary.
The standard of appellate review in a probation revocation hearing distills to a review of the reasonableness of two findings. The findings to be reviewed are whether the condition of probation was violated and whether the beneficial purpose of the condition is still being served. State v. Roberson, 165 Conn. 73, 80, 327 A.2d 556 (1973). Even if the trial court could reasonably determine that the defendant had transgressed the
At the time of the revocation of the defendant’s probation, the particular condition, even if violated, was known not to be reasonably related to the rehabilitation of the defendant and to the protection of the public. See General Statutes § 53a-30 (a) (9); United States v. Stine, 646 F.2d 839, 842 (3d Cir. 1981); Higdon v. United States, 627 F.2d 893, 897 (9th Cir. 1980).
The state argues that even if the condition should never have been imposed, the defendant was bound by it, and any violation of it, for any length of time, was, per se, a sufficient ground for the revocation of probation. A defendant is, of course, in legal peril of incarceration at a hearing on the revocation of probation. If a failure to comply with a condition of probation
There is error, the judgment is set aside, and the case is remanded for further proceedings.
In this opinion the other judges concurred.
The appeal was originally filed in the Appellate Session of the Superior Court. General Statutes § 51-197a (c). The revocation of postconviction probation is a final appealable judgment. State v. Parker, 194 Conn. 650, 659 n.8, 485 A.2d 139 (1984).
At oral argument, the defendant asserted that the probation condition of psychiatric counseling, when left to the discretion of the adult probation officer, is an illegal delegation of judicial authority. General Statutes § 53a-30 (b) expressly allows either the judge or the probation department to impose reasonable conditions of probation and such imposition is not an illegal delegation of the judicial function. State v. Roberson, 165 Conn. 73, 76 n.1, 327 A.2d 556 (1973).