STATE OF CONNECTICUT v. JERZY G.
(SC 19641)
Supreme Court of Connecticut
Argued February 21—officially released July 11, 2017
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Vertefeuille, Js.
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Syllabus
The defendant, a Polish citizen who had been charged with sexual assault in the fourth degree, appealed to the Appellate Court from the trial court‘s orders terminating his participation in a statutory (
Argued February 21—officially released July 11, 2017
Procedural History
Information charging the defendant with the crime of sexual assault in the fourth degree, brought to the Superior Court in the judicial district of Fairfield, where the court, Iannotti, J., granted the defendant‘s application for accelerated rehabilitation; thereafter, the court, Arnold, J., denied the defendant‘s motion to dismiss and terminated the order of accelerated rehabilitation, and the defendant appealed to the Appellate Court, Gruendel, Mullins and Solomon, Js., which dismissed the appeal, and the defendant, on the granting of certification, appealed to this court. Reversed; further proceedings.
Kelly Billings, assistant public defender, with whom was James B. Streeto, senior assistant public defender, for the appellant (defendant).
Michele C. Lukban, senior assistant state‘s attorney, with whom, on the brief, were John C. Smriga, state‘s attorney, and Marc R. Durso, senior assistant state‘s attorney, for the appellee (state).
Anthony D. Collins, Meghann E. LaFountain and Yazmin Rodriguez filed a brief for the American Immigration Lawyers Association as amicus curiae.
Opinion
MCDONALD, J. In State v. Aquino, 279 Conn. 293, 298, 901 A.2d 1194 (2006), this court concluded that a deported defendant‘s challenge to the denial of his motion to withdraw his guilty plea was moot because, in the absence of evidence that the attendant conviction was the sole barrier to the deportee‘s ability to reenter the United States or to obtain naturalization, the court could not afford the deportee practical relief. In the present case, the Appellate Court concluded that, under Aquino, the appeal of the defendant, Jerzy G., from the trial court‘s order terminating his participation in an accelerated rehabilitation program and ordering his rearrest on the pending criminal charge was rendered moot by his deportation because the reason for his deportation was unrelated to that program or that charge. State v. Jerzy G., 162 Conn. App. 156, 161, 164, 130 A.3d 303 (2015). We conclude that Aquino, properly construed, does not control the present case because the record establishes the reason for the defendant‘s deportation and there is a reasonable possibility that the trial court‘s orders would result in prejudicial collateral consequences. Accordingly, the Appellate Court improperly dismissed the defendant‘s appeal as moot.
The record reveals the following undisputed facts. The defendant is a citizen of Poland. In April, 2006, he entered the United States on a nonimmigrant B-2 visitor‘s visa, which authorized him to remain in this country for a period not to exceed six months. Approximately six years later, in January, 2012, the defendant was charged with one count of sexual assault in the fourth degree, a class A misdemeanor, in violation of
At an April, 2012 hearing on the application, the state brought information to the court‘s attention that it had received from United States Immigration and Customs Enforcement (ICE) regarding the defendant‘s immigration status. ICE informed the state that the defendant had overstayed his visa. ICE indicated that it would commence removal proceedings if the defendant was convicted of the charge, but was uncertain about what would happen if he was not convicted. The state also informed the court that the complainant, an acquaintance of the defendant, had reported that the defendant has a wife and children who are living in Poland.
Between May and August, 2012, ICE took steps to remove the defendant from the United States. In May, the defendant was taken into custody by ICE after he was served with a notice to appear. The notice stated that he was subject to removal because he had remained in the United States for a period longer than permitted, without authorization. In June, a United States Immigration Court ordered his removal from the United States. Following that order, the United States Department of Homeland Security issued a notice to the defendant, warning him that he was prohibited from entering the United States for a period of ten years from his departure date because he had been found deportable under
In November, 2013, the defendant‘s deportation was brought to the trial court‘s attention. Upon the request of the Department of Adult Probation, the court, Arnold, J., advanced the date for a determination whether the defendant had successfully completed the terms of his accelerated rehabilitation from April, 2014, to November, 2013. At the hearing, the state sought termination of the program and requested an order for the defendant‘s rearrest. The defendant‘s public defender asked the court either to continue the case to allow further investigation or to find that the defendant had successfully completed the program and dismiss the criminal charge. Ultimately, following additional hearings, the court found that the defendant had failed to successfully complete the program, ordered his rearrest, and imposed as a condition of his release that he post a $5000 cash or surety bond.
The court explained its decision in a subsequent memorandum of decision, couching its reasoning in both jurisdictional and substantive terms. It noted that the state had informed the court that the basis for the defendant‘s deportation was that he had overstayed his visa‘s term. It thus found that the defendant voluntarily had placed himself in jeopardy for deportation and was aware of this possibility when accelerated rehabilitation was ordered for the two year period. It found that the defendant had offered no proof that his deportation was solely a consequence of either his arrest, the pendency of the criminal charge, or his entrance into the accelerated rehabilitation program. The court further noted that the defendant had not offered any proof of compliance with the
The defendant appealed to the Appellate Court, claiming that the trial court had abused its discretion by (1) denying his motion to dismiss the criminal charge, or (2) refusing to continue the case until he could return to the state to complete the program. State v. Jerzy G., supra, 162 Conn. App. 158. The Appellate Court did not reach the merits of these claims, concluding that the appeal should be dismissed as moot. Id., 161. The court cited Aquino and its Appellate Court progeny as prescribing a rule under which the court cannot grant practical relief unless there is evidence that the challenged decision is the exclusive basis for the deportation. Id., 161-64. Because the defendant conceded that he was deported solely because he had overstayed his visa, a reason independent of his termination from the accelerated rehabilitation program, the Appellate Court reasoned that a favorable decision in his appeal could not afford the defendant practical relief with regard to his deportation. Id., 164–65. The Appellate Court rejected the defendant‘s argument that the termination of accelerated rehabilitation gave rise to collateral consequences that could satisfy mootness, namely, that the decision could prevent him from reentering this country, visiting this country, or seeking naturalization as a United States citizen. Id., 166. Again relying on Aquino, the court concluded that because the defendant had produced no evidence to establish that, in the absence of the termination of accelerated rehabilitation, he would be permitted to reenter, visit, or naturalize, the purported collateral consequences were too conjectural. Id., 166-67. The defendant‘s certified appeal to this court followed.1
On appeal to this court, both parties agree that Aquino is distinguishable from the present case. Their principal focus is on the fact that the deportee in Aquino had pleaded guilty to a deportable crime, whereas the defendant in the present case has not yet been convicted of any crime but is subject to arrest should he reenter the United States. The parties disagree, however, whether the distinctions between the cases are material with respect to the applicability of Aquino to the present case. We conclude that Aquino does not apply to the present case. We further conclude that the trial court‘s orders in the present case gave rise to prejudicial collateral consequences from which this court can afford practical relief. Accordingly, the appeal is not moot.
It is well settled that “[a] case is considered moot if [the] court cannot grant
In State v. McElveen, 261 Conn. 198, 802 A.2d 74 (2002), this court engaged in a comprehensive examination of the contours of the collateral consequences doctrine, which provides an exception to the traditional direct injury requirement of mootness. The defendant, Derek McElveen, was found to have violated the conditions of his probation on charges of failure to appear in the second degree due to his arrest in connection with an alleged attempt to commit robbery. Id., 203. McElveen appealed from the judgment revoking his probation and imposing a previously suspended sentence, claiming that there was insufficient evidence to prove that he had engaged in the criminal conduct deemed to violate his probation. Id. Mootness concerns arose because, while his appeal was pending, McElveen completed serving his sentence for the probation violation. Id. We concluded that the completed sentence did not render the appeal moot.2 Id., 216.
The court began with core principles. “[A] case does not necessarily become moot by virtue of the fact that due to a change in circumstances, relief from the actual injury is unavailable. We have determined that a controversy continues to exist, affording the court jurisdiction, if the actual injury suffered by the litigant potentially gives rise to a collateral injury from which the court can grant relief.” Id., 205.
The court then surveyed cases in which it previously had found such prejudicial collateral consequences to exist and gleaned from them the following standard: “[F]or a litigant to invoke successfully the collateral consequences doctrine, 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. The reviewing court therefore determines, based upon the particular situation, whether, the prejudicial collateral consequences are reasonably possible.” Id., 208.
In
The second notable aspect of McElveen was the court‘s approach to the question of whether there could be collateral consequences to overcome a charge of mootness even though granting relief would not remove similar prejudice remaining from other sources. Specifically, the court concluded that there was a reasonable possibility of prejudicial collateral consequences arising from the violation of probation because the record of that violation could negatively impact (1) the defendant‘s ability to obtain a favorable decision concerning preconviction bail should he have future involvement with the criminal justice system, (2) his standing in the community in light of the connotation of wrongdoing attendant to a violation of probation,
The proposition that the challenged decision did not have to be the sole source of possible prejudice found support in the court‘s earlier decision in Housing Authority v. Lamothe, 225 Conn. 757, 765, 627 A.2d 367 (1993). In that case, the appeal of the defendant tenant from a summary judgment of eviction was deemed not to be moot after the defendant voluntarily vacated the premises during the pendency of the appeal in order to have sufficient time to relocate her family. Id. The court deemed prejudicial collateral consequences reasonably possible insofar as the eviction could adversely impact the defendant‘s eligibility for low income subsidized housing in the future. Id. The court squarely rejected the plaintiff landlord‘s argument that “because of other problems in the defendant‘s family, the judgment of eviction would not be the only consideration on which the housing authority might have relied in deciding against her with regard to any future application. We conclude that the existence of other criteria does not undermine the housing authority‘s ability to rely on the judgment of eviction from low income subsi-dized housing as a basis for rejecting any future application.” Id.
Against this backdrop, we turn to Aquino, the deportation case on which the trial court and the Appellate Court relied. The defendant, Mario Aquino, was a Guatemalan national who had illegally entered the United States and remained here as an illegal alien for many years before criminal charges were filed against him. State v. Aquino, supra, 279 Conn. 295. He initially entered a guilty plea under the Alford doctrine; North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970); but later moved to
In the certified appeal that followed, this court concluded that the appeal was moot. State v. Aquino, supra, 279 Conn. 297, 299. The court explained: “[I]n the absence of any evidence that the defendant‘s guilty plea was the sole reason for his deportation, the defendant‘s appeal must be dismissed as moot. . . . There is no evidence in the record as to the reason for his deportation. If it was not the result of his guilty plea alone, then this court can grant no practical relief and any decision rendered by this court would be purely advisory.” Id., 298. This court‘s response to the Appellate Court‘s collateral injury holding was relegated to a footnote, in which this court summarily dismissed that holding as follows: “The Appellate Court concluded that the appeal was not rendered moot by the deportation because the defendant‘s ability to petition for naturalization would be gravely impaired by the guilty plea. . . . Just as there is no evidence in the record before us establishing the reason for the defendant‘s deportation, however, there is no evidence to suggest that, in the absence of the guilty plea, the defendant would be allowed to reenter this country or become a citizen.” (Citation omitted.) Id., 298–99 n.3.
On its face, Aquino appears to be inconsistent with our collateral consequences jurisprudence. The opinion makes no express reference to “collateral consequences” or the “reasonable possibility” standard set forth in McElveen. Indeed, the suggestion that the defendant must produce evidence that he “would be allowed” to reenter this country or become a citizen; State v. Aquino, supra, 279 Conn. 298–99 n.3; seems to be in tension with that standard. Similarly, the suggestion that the guilty plea must be the sole reason for the deportation would seem to be in tension with statements in McElveen and Lamothe that it is not dispositive that similar prejudicial collateral consequences may remain from other
Nonetheless, the court must have been aware of the basis for the Appellate Court‘s decision, which expressly recited the reasonable possibility of collateral consequences as the governing standard. State v. Aquino, supra, 89 Conn. App. 405-406. Moreover, if this court had determined that this standard was inapplicable, it presumably would have explained the reason for doing so, given that this court has applied the standard in McElveen in numerous cases and varied circumstances, without exception. See Rowe v. Superior Court, 289 Conn. 649, 655, 960 A.2d 256 (2008) (summary judgment of criminal contempt); State v. Preston, supra, 286 Conn. 382 (violation of probation); Putman v. Kennedy, 279 Conn. 162, 169–70, 900 A.2d 1256 (2006) (domestic violence restraining order); In re Allison G., 276 Conn. 146, 166-67, 883 A.2d 1226 (2005) (petition seeking adjudication of child neglect); Wallingford v. Dept. of Public Health, 262 Conn. 758, 761, 767–68, 817 A.2d 644 (2003) (agency‘s declaratory ruling finding jurisdiction over property); Williams v. Ragaglia, supra, 261 Conn. 221, 225-26 (foster care license).
There is, however, an important aspect of the court‘s reasoning in Aquino that can explain the holding in a manner that is consistent with earlier precedent. The court emphasized the lack of evidence in the record to establish the reason for Aquino‘s deportation and, conversely, to establish the lack of any impediment other than the guilty plea that would preclude Aquino‘s admission to the country. State v. Aquino, supra, 279 Conn. 298 and nn.2 and 3. Without that information, the court apparently deemed it impossible to determine whether, even if Aquino prevailed on appeal and his conviction was reversed, such a decision would improve his chances of reentry into the country or naturalization. It is a settled principle under both federal and Connecticut case law that, if a favorable decision necessarily could not afford the practical relief sought, the case is moot. Thus, courts have held that when a conviction, other than the one being challenged, results in a deportee‘s permanent ban from reentering this country, the deportee cannot establish collateral injury even if the challenged conviction also is an impediment to reentry. See, e.g., Perez v. Greiner, 296 F.3d 123, 126 (2d Cir. 2002) (“because [the petitioner] is permanently inadmissible to this country due to his prior drug conviction, collateral consequences cannot arise from the challenged robbery conviction, and the petition is moot“); St. Juste v. Commissioner of Correction, 155 Conn. App. 164, 181, 109 A.3d 523 (concluding that appeal challenging assault conviction was moot because petitioner‘s earlier threatening conviction would bar his admission into country), cert. granted, 316 Conn. 901, 111 A.3d 470 (2015); Quiroga v. Commissioner of Correction, 149 Conn. App. 168, 174-75, 87 A.3d 1171 (“[e]ven if the immigration court had predicated its deportation order on the [challenged] larceny conviction exclusively, the petitioner still could not prevail” because his prior narcotics conviction would permanently bar admission), cert. denied, 311 Conn. 950, 91 A.3d 462 (2014). Such a circumstance is distinguishable from McElveen and Lamothe because, although there were other potential sources of prejudice in those cases, those sources were not necessarily dispositive regarding the collateral injury, unlike a conviction resulting in a permanent ban from admission
With this view of Aquino, we turn to the present case. Unlike Aquino, the record establishes the reason for the defendant‘s deportation—overstaying the term of his visitor visa without permission to do so. Indeed, the defendant‘s deportation could not have been based in any part on his state criminal charge because prosecution on that charge was suspended until the trial court terminated his accelerated rehabilitation following his deportation. The record also establishes that the ground for the defendant‘s removal does not permanently bar him from reentering the United States, but only bars his reentry for ten years from the date of his departure (almost one half of that period having already lapsed). Once that period expires, the ground for his removal imposes no legal impediment to reentry. Accordingly, Aquino does not control the present case.
We consider, therefore, whether there is a reasonable possibility of prejudicial collateral consequences as a result of the trial court‘s orders. We conclude that there is a reasonable possibility of prejudicial collateral consequences should the defendant seek to lawfully reenter the United States. The order for the defendant‘s arrest on a pending criminal charge would not bar his admission into the United States. See
The state‘s argument that we should deem this appeal moot to preserve the status quo because the state has a continued interest in bringing a defendant to trial is confounding. The state posits that “[i]f this court concludes that the appeal is not moot and that the status quo should not be maintained, such decision could encourage defendants to waive removal and appeal, rely on a successful appeal resulting in a termination of [accelerated rehabilitation], thus avoiding prosecution and thereafter being eligible for reentry having avoided a conviction.” Putting aside the multiple conditions that would have to be met for such circumstances to arise, there is a fundamental flaw in this reasoning. If a defendant has successfully completed accelerated rehabilitation, he or she is statutorily entitled to dismissal of the criminal charge. Thus, the state‘s real concern is whether it is proper to conclude that the defendant has successfully completed accelerated rehabilitation when he has been deported prior to the termination of the period of supervision under the circumstances presented. By allowing the appeal to proceed on the merits, the state will have the opportunity to make its case on that issue.
Finally, we note that, although the defendant is legally entitled to a presumption of innocence on the pending criminal charge, his reputation is subject to the stain associated with an arrest for probable cause of having committed a sexual assault in the court of public opinion, should the pending charge come to light. Thus, if the defendant‘s appeal is deemed to be moot, he will have been deprived of the only avenue to remove that stain. See Williams v. Ragaglia, supra, 261 Conn. 233 (“[i]n recognition of the importance of one‘s good name, this court has determined, when addressing collateral consequences, that an action that stains
Accordingly, we conclude that the present case is controlled by our traditional collateral consequences standard. The record establishes that the defendant‘s appeal is not moot because it is reasonably possible that prejudicial collateral injury will arise from the trial court‘s orders. Accordingly, the Appellate Court should consider the merits of the defendant‘s appeal on remand.
The judgment of the Appellate Court is reversed and the case is remanded for further proceedings.
In this opinion ROGERS, C. J., and PALMER, EVELEIGH and VERTEFEUILLE, Js., concurred.
* In accordance with our policy of protecting the privacy interests of the victims of sexual assault, we decline to identify the victim or others through whom the victim‘s identity may be ascertained. See