State v. MooreState v. Moore
- Reporters:
- , ,
- Before:
- Mihalakos
Opinion
MIHALAKOS, J.The defendant, Jerome Moore, appeals from the judgment, rendered by the trial court, finding him in violation of his probation pursuant to *9
The following facts and procedural history are relevant to our resolution of the defendant’s appeal. On March 29, 2000, the defendant pleaded guilty under the Alford doctrine1 to a charge of burglary in the third degree. The court, Damiani, J., sentenced the defendant to three years imprisonment, execution suspended, with two years of probation. At the time of the burglary sentencing, the defendant was serving a one year sentence on an unrelated drug conviction, which also carried a $2500 fine.2 The court ordered that the defendant’s burglary probation be stayed until he was released from the one year sentence of imprisonment on the drug conviction.
On April 25, 2001, the defendant was released from prison so that he could earn money to pay the fine associated with his drug conviction. Shortly thereafter, on May 24, 2001, the defendant was arrested for possession of marijuana with the intent to sell. After his arrest, the defendant was released from custody, but was scheduled to return to court on June 22, 2001, to pay the fine associated with his original drug conviction. The defendant failed to appear, and a rearrest warrant was issued.
On December 15, 2001, the defendant was again arrested and charged with possession of marijuana with *10the intent to sell. On December 18, 2001, a judgment mittimus was issued, requiring the defendant to be held in confinement until the fine was paid. A warrant for the defendant’s arrest for violation of the burglary probation, on the basis of his December 15, 2001 arrest, was issued on January 29,2002. After the defendant was rearrested, a hearing was held to determine whether he had violated his probation. On June 4, 2002, the court, D’Addabbo, J., found that the defendant had violated his burglary probation by virtue of the drug arrests in May and December, 2001, and ordered that the defendant serve thirty-two months of the three year sentence imposed by Judge Damiani in March, 2000, for the conviction of burglary in the third degree. This appeal followed.
I
The defendant first claims that the sentencing court improperly stayed the probation portion of his sentence . for the burglary conviction in violation of
We first set forth the applicable standard of review. The defendant concedes that his claim was not preserved. Although the defendant does not seek review under Stale v. Golding, 213 Conn. 233, 239-40, 567 A.2d *11823 (1989), he asserts that his claim merits review under the plain error doctrine; see
In this case, the court stayed the commencement of the defendant’s probation until his term of incarceration for a drug conviction concluded, even though the law provides that a defendant may be imprisoned and on probation at the same time. See id. The state argues, however, that pursuant to our holding in State v. Outlaw, 60 Conn. App. 515, 760 A.2d 140 (2000), aff‘d, 256 Conn. 408, 772 A.2d 1122 (2001), a court may order a sentence of probation to commence after a defendant is released from prison. Id., 523-24. This case is distinguishable from Outlaw because the defendant’s sentence of probation in that case was attached to a period of incarceration that was to be executed before probation commenced. Id., 517. While the defendant in Outlaw was serving his initial period of imprisonment, he was convicted of various prison offenses, the sentences for which were to run consecutively to the original sentence.3 Id., 518. Because the sentence of the defendant in Outlaw had commenced before his term of imprisonment was extended on a separate conviction, there was no violation of
The sentencing court in this case stayed the commencement of the defendant’s term of probation even though the term of probation was not attached to a period of related incarceration. Moreover, the sentence *13ignores the fact that a defendant can be imprisoned and be placed on probation at the same time. We therefore agree with the defendant that the sentencing court misapplied
Nevertheless, we conclude that despite the fact that the court misapplied the statute, there is no miscarriage of justice of the magnitude required that merits relief under the doctrine of plain error. In fact, it appears that the public confidence injudicial proceedings would be weakened were we to accept the defendant’s contention that the sentencing court’s failure to apply
II
The defendant next claims that the court improperly found that he was in violation of his probation because he did not violate the “sole” condition of his probation, which was to avoid contact with his former girlfriend. The defendant asserts that the use of the word “sole” by the court suggests that the no contact condition was the exclusive condition of his probation, prohibiting the addition of any other condition, whether express or implied.4 The defendant, therefore, contends that even if there was evidence sufficient to establish by a preponderance of the evidence that he committed two drug offenses, those violations of a criminal statute were not *14violations of the conditions of his probation. We disagree.
Before discussing the merits of that claim, we note our standard of review. “In a probation violation proceeding, all that is required is enough to satisfy the court within its sound judicial discretion that the probationer has not met the terms of his probation.” (Internal quotation marks omitted.) State v. Lewis, 58 Conn. App. 153, 157, 752 A.2d 1144, cert. denied, 254 Conn. 917, 759 A.2d 508 (2000). “In reviewing claims that the trial court abused its discretion, great weight is given to the trial court’s decision and every reasonable presumption is given in favor of its correctness.” (Internal quotation marks omitted.) State v. Young, 81 Conn. App. 710, 714, 841 A.2d 737, cert. denied, 269 Conn. 901, 852 A.2d 733 (2004). “[E]xcept where an abuse of discretion is clearly shown, the conclusion of a trial court should be affirmed so long as it is a reasonable one on the basis of the evidence adduced and the inferences drawn therefrom.” (Internal quotation marks omitted.) State v. Gonzalez-Rivera, 48 Conn. App. 784, 791, 713 A.2d 847, cert. denied, 245 Conn. 923, 717 A.2d 238 (1998).
“Due process requires, at a minimum, that an individual receive notice of probation conditions and an opportunity to be heard.” State v. Reilly, 60 Conn. App. 716, 728, 760 A.2d 1001 (2000). “Where noncriminal activity forms the basis for the revocation of probation, due process requires specific knowledge that the behavior involved is proscribed.” Id., 729. In contrast, “[d]ue process does not require that the defendant, in a revocation of probation proceeding based on criminal activity, be aware of the conditions of probation.” State v. Lewis, supra, 58 Conn. App. 157. “[T]he law imputes to the probationer the knowledge that further criminal transgressions will result in a condition violation . . . .” State v. Reilly, supra, 728. “An inherent condition of any probation is that the probationer not commit further *15violations of the criminal law while on probation.” State v. Lewis, supra, 157-58. “It is universally held that the commission of a felony violates a condition inherent in every probation order.” State v. Roberson, 165 Conn. 73, 77, 327 A.2d 556 (1973). “The general conditions of probation are presumed as an integral part of probation.” State v. Lewis, supra, 158. We conclude that the mere addition of a condition beyond those implied conditions should not and does not negate the inherent conditions of probation.
It is well established that the violation of a criminal statute need not be made an express condition of probation. Because the defendant was in violation of a criminal statute, the court could have reasonably found that he violated his probation.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Although there was much discussion concerning the date of the sentence, the record appears to reflect a sentencing date of February 15, 2000.
The defendant in Outlaw was sentenced to an additional twenty-three months imprisionment for one count of assault in the third degree and two counts of possession of a weapon in a correctional institution. State v. Outlaw, supra, 60 Conn. App. 518 and n.4.
The defendant does not contend on appeal that there was insufficient proof of his criminal conduct in possessing marijuana, but only that the “no contact” condition was the sole condition of his probation.