55 Conn. App. 243 | Conn. App. Ct. | 1999
Opinion
The defendant, Darrell Jones, appeals from the judgment of the trial court revoking his probation and committing him to the custody of the commissioner of correction for six years. On appeal, the defendant claims that (1) the judgment revoking his probation should be set aside because he was acquitted of the criminal charges that formed one of the bases of the trial court’s finding of a probation violation and (2) the court improperly based its probation violation finding on the defendant’s violation of a condition of probation that had terminated by operation of law.
The following facts and procedural history are relevant to the resolution of this appeal. The defendant pleaded guilty under the Alford doctrine
On December 19, 1994, the defendant was charged with violating the conditions of probation by failing to pay the ordered restitution and because he had tested positive for and admitted to using cocaine. The trial court found that the defendant violated his probation, vacated the previous sentence, sentenced him to six years, execution suspended, and placed the defendant on probation for two year’s. The conditions of the defendant’s probation were that he pay restitution to the victim of $210 within one week, pay restitution to Aetna Insurance Company (Aetna) according to a payment schedule set by the court, undergo random drug testing and treatment as needed and remain drug free. The defendant signed the conditions of his probation.
On July 13, 1996, the defendant was arrested on charges of larceny in the sixth degree and issuing a bad check.*
The trial court held a hearing on two successive days, September 11 and 12, 1997. At the hearing, the state presented two witnesses and the defendant elected not to testify or present any other evidence. The court found that the state established by a fair preponderance of the evidence that there had been a violation of several conditions of probation, including the condition inherent in every probation order that the probationer not violate the criminal law; see State v. Wright, 24 Conn. App. 575, 576, 590 A.2d 486 (1991);
The trial court concluded that the defendant should be incarcerated because the rehabilitative purpose of
“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 determination, the trial court is entitled to draw reasonable and logical inferences from the evidence. . . . This court may reverse the trial court’s initial factual determination 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 .... State v. Welch, 40 Conn. App.
The defendant first claims that he was entitled to a finding that he had not violated his probation because he was eventually acquitted at trial. We disagree.
The state argues that we should decline to review this claim because the defendant failed to preserve it. The defendant claims that he preserved this claim and, in the alternative, that this court should review his claim pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989). We conclude that under either alternative, the claim fails.
This claim is controlled by our recent decision in State v. Rollins, supra, 51 Conn. App. 478. The defendant in Rollins similarly claimed that he should be acquitted of the probation violation charge because he was eventually acquitted at trial. We rejected that claim and concluded that the trial court’s finding of a violation of probation was not clearly erroneous. Id., 483. In rejecting the defendant’s claim in that case, we noted that “[i]n a criminal proceeding, substantive guilt must be established beyond a reasonable doubt; a probation violation need be proven only by a preponderance of the evidence.” Id.; see also State v. Davis, 229 Conn. 285, 295, 641 A.2d 370 (1994).
In Rollins, we held: “A revocation of probation proceeding based upon a violation of a criminal law need not be deferred until after a disposition of the charges underlying the arrest because the purpose of a probation revocation hearing is to determine whether a defendant’s conduct constituted an act sufficient to support a revocation of probation; Payne v. Robinson, 10 Conn. App. 395, 523 A.2d 917 (1987) [aff'd, 207 Conn. 565, 541 A.2d 504, cert. denied, 488 U.S. 898, 109 S. Ct. 242, 102
Here, the trial court found, by a preponderance of the evidence, that the defendant violated a condition of his probation by committing felonies, thereby violating criminal laws of the state of Connecticut. This finding was supported by testimony at the revocation hearing and is not clearly erroneous. The defendant’s acquittal of those charges in a subsequent criminal trial does not affect the trial court’s finding in this probation revocation hearing.
The defendant next claims that the trial court improperly found that he violated his probation by failing to pay restitution of $8000 to Aetna because, according to the defendant, this condition of his probation had expired by operation of law. In light of our finding as to the defendant’s first claim, we need not reach this issue. The trial court found that the defendant violated a condition of his probation by committing felonies. We do not disturb that finding. Thus, even if we agreed with the defendant’s second claim, the probation violation finding would stand. Furthermore, we note that the probation violation finding also was premised on the defendant’s violation of other conditions of his probation, namely, his failure to pay in full restitution of $210 and his failure to remain drug free. The defendant does not challenge those findings on appeal.
The judgment is affirmed.
In this opinion the other judges concurred.
The defendant does not challenge the finding of the trial court as to the second phase of the probation revocation hearing, namely, the finding that the rehabilitative purpose of probation had failed. See State v. Davis, 229 Conn. 285, 290, 641 A.2d 370 (1994) (probation revocation hearing has two components, whether defendant violated condition of probation and whether probationary status should be revoked). Thus, we are concerned with only the first component, that is, the determination of whether there has been a violation of a condition of probation, and not with the court’s discretionary determination of whether probation was properly revoked.
“ ‘Under North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970), a criminal defendant is not required to admit his guilt, but consents to being punished as if he were guilty to avoid the risk of proceeding to trial.’ Commissioner of Correction v. Gordon, 228 Conn. 384, 385 n.1, 636 A.2d 799 (1994). ‘A guilty plea under the Alford doctrine is a judicial
The conditions of the defendant’s probation were that he get a full-time job, receive substance abuse evaluation and treatment, remain drug free, pay restitution to the victim of $250 within ninety days and pay restitution to Aetna Insurance Company of $8000 in connection with a condition of probation from a previous offense.
On April 15, 1997, the defendant pleaded guilty to the charge of issuing a bad check and was sentenced to three months incarceration, execution suspended, and placed on probation for one year with the special condition that he make restitution of $150 on the check.
Although the defendant’s July 13, 1996 arrest was included in the arrest warrant application as a ground for his violation of probation, evidence concerning his conviction for issuing a bad check was not considered at the violation of probation hearing.
In Wright, this court noted that “ ‘[i]t is universally held that the commission of a felony violates a condition inherent in every probation order. . . . Had the sentencing court in this case merely placed the defendant on probation and said no more, commission of a felony would nevertheless constitute a violation sufficient to authorize revocation of probation.’ . . . State v. Roberson, 166 Conn. 73, 77, 327 A.2d 556 (1973).” State v. Wright, supra, 24 Conn. App. 577 n.1.
Here, the defendant concedes in his brief that one of the conditions of his probation was that he not violate any criminal law of the state of Connecticut.
