State v. StricklandState v. Strickland
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The defendant appeals from the judgment of the trial court revoking his probation, pursuant to
In August, 1985, the defendant pleaded guilty to a count of sexual assault in the first degree on each of two pending cases. On September 23, 1985, the court, Hendel, J., sentenced the defendant to a term of twenty years incarceration with execution suspended after eight years, followed by five years of probation. On July 27, 1990, due to credits earned, the commissioner of correction (commissioner) released the defendant from custody. The defendant’s five year probationary period commenced on that date. On August 7,1990, the defendant reviewed the conditions of his probation, including the requirement that he refrain from violating the criminal laws of this state, and signed a form outlining those conditions.
On February 28, 1992, the defendant was arrested and charged on two separate informations with one count of burglary in the third degree and one count of possession of narcotics. The defendant was incarcerated pending disposition of those charges. On July 27, 1992, the defendant pleaded guilty to both charges and
On March 2, 1993, after serving approximately thirteen months of the five year sentence ordered on July 27, 1992, the defendant was released to the Fellowship House in Groton under the provisions of the supervised home release program. As a matter of law, a prisoner who is released from incarceration to the supervised home release program remains subject to the supervision of the department of correction and remains in its legal custody as if he were incarcerated. Asherman v. Meachum, 213 Conn. 38, 48, 566 A.2d 663 (1989).
At some time during the month of October, 1993, the defendant was arrested and charged with burglary in the third degree, possession of burglary tools and larceny in the sixth degree. This event caused the defendant to be removed from the supervised home release program and returned to incarceration. On October 25,1993, the defendant was brought before the court in New London to be arraigned on the new charges. At some point during or after the arraignment, as the sheriff escorted the defendant from the courtroom toward the lockup area, the defendant broke from the custody of the sheriffs and attempted to escape. The sheriffs apprehended the defendant before he reached the backdoor. Subsequent to his presentment on October 25, 1993, the defendant was held at the Radgowski Correctional Cen-
As a result of these incidents, the defendant was arrested on a warrant1 charging him with violating the probation imposed in 1985, which had commenced on July 27, 1990. On August 1, 1994, prior to the start of a violation of probation hearing, the defendant made a motion to dismiss the violation of probation charge. The court, Parker, J., denied the defendant’s motion.2 The revocation hearing proceeded on August 1 and 3, 1994, and, on the latter date, the court found the defendant to be in violation of his probation. On August 8, 1994, the court sentenced the defendant to twelve years, the suspended portion of the defendant’s original sentence ordered in September, 1985.
The defendant first claims that the trial court improperly denied his pro se motion to dismiss the violation of probation charges. The defendant predicated his motion on the argument that, as a matter of law, an individual cannot be simultaneously in the custody of the commissioner of correction and on probation. In presenting his motion, the defendant argued that at the time of the alleged underlying offenses set forth in the long form information, i.e., during the months of October and November, 1993, he remained in the custody of the commissioner by virtue of his retention in the supervised home release program, which he entered in March of that year. The defendant maintained that the commissioner’s custodial authority over him during that time period precluded the defendant from simultaneously completing the five year probationary period ordered in September, 1985. The defendant argued, therefore, that because he was not on probation, the court could not find him to be in violation of probation. As authority for his claim, the defendant relied on State v. Deptula, 34 Conn. App. 1, 639 A.2d 1049 (1994).
In denying the defendant’s motion to dismiss, the court concluded that “[t]he probation ordered in 1985, which began on July 27, 1990, was not interrupted by his being sentenced and placed in custody on July 27, 1992. The defendant’s contention that he could not be, at the same time, in custody on one sentence (that imposed on July 27, 1992) and also be on probation on another (that imposed in 1985) is unfounded. Deptula, does not hold otherwise.” We agree. In Deptula, we held that a violation of probation may not be predicated on an act that took place during the custodial portion of a sentence, and prior to the commencement of the probationary period. In the present case, the probationary period clearly commenced on July 27, 1990. The
On appeal, the defendant claims that the trial court improperly denied his motion to dismiss because on July 27,1992, the court, Stanley, J., modified the original term of probation by suspending the defendant’s probation while he served his sentence on the other two dockets. In attempting to substantiate that the trial court suspended his probation, the defendant recites the court’s order that the defendant “is to remain on probation once he is released under the original terms and conditions.” The defendant argues that the court’s order is unambiguous and a literal reading of the court’s sentencing reveals that the court did not state that the defendant would continue on probation under the original terms and conditions. The defendant maintains that an examination of the exact wording used by the court in sentencing the defendant leads to the singular, logical conclusion that the commencement of his probation could be triggered only by his release from incarceration. Because the defendant remained within the jurisdiction of the commissioner during the months of October and November, 1993, the defendant concludes that his probation was never reactivated.
We decline to adopt the defendant’s forced, literal interpretation of the court’s order on July 27, 1992. The court’s omission of the word “continued,” stressed as determinative by the defendant, loses significance when we consider the court’s omission of the words “suspended” and “tolled.” Moreover, a thorough review of the entire July, 1992 sentencing proceeding before Judge Stanley reveals that all of the parties concerned clearly articulated and comprehended that the defend
A review of the pertinent statutes serves to further refute the defendant’s contention that the trial court acted to suspend his probation. “Probation is the product of statute. See
On July 27, 1992, the defendant admitted to being in violation of his probation. Pursuant to
Given the lack of statutory authority to suspend or toll a probationary period, it is difficult, if not impossible, to surmise, as the defendant does, that Judge Stanley unilaterally took the unprecedented action of suspending the defendant’s probation. Under the circum
The defendant argues that in July, 1992, pursuant to
The defendant refers to
A violation brought pursuant to
On the basis of our review of the July 27,1992 sentencing proceeding and the pertinent statutes, we conclude that the trial court properly denied the defendant’s motion to dismiss.
II
The defendant next claims that the evidence was insufficient for the trial court to find the defendant in violation of his probation. We need not, at this time, discuss our standard of review or the standard of proof applicable to a finding of a violation of probation. The parties agree, as do we from our review of the record, that the only true contested issue before us is whether the trial court properly determined that the defendant was actually on probation during the months of October and November, 1993, when he committed the crimes on which the alleged violation was based. The record, as discussed in part I, leads us to conclude that the evidence presented was sufficient to establish that the defendant was on probation during that period of time, and that he violated that probation.
The defendant claims that the trial court improperly allowed him to waive his right to counsel and to represent himself with standby counsel. Certain additional facts are necessary for a proper resolution of this issue.
The defendant was represented by a public defender. On June 17, 1994, the defendant renewed his motion to dismiss the public defender and to allow the defendant to represent himself pro se.5 The court denied the motion.
On August 1, 1994, prior to the start of the hearings on the motion to dismiss the information and the violation of probation charge, the defendant requested that he be allowed to represent himself. The defendant based this request, as he based his previous two requests to represent himself, on his disagreement with the public defender regarding whether he was on probation during the months of October and November, 1993, and, hence, subject to charges of violation of probation. Judge Parker read to the defendant § 961 of the rules of practice concerning waiver of the right to counsel and proceeded to conduct the four-pronged examination required by that rule.6 After a comprehensive can
A criminal defendant has the right to appear pro se in a state criminal trial when he voluntarily and intelligently elects to do so, and has a constitutional right to represent himself at a violation of probation hearing upon an effective waiver of the right to the assistance of counsel. State v. Smith, 18 Conn. App. 368, 373, 558 A.2d 257 (1989). “When a defendant is deciding whether to appear pro se or with a lawyer, it is vital for the trial court to satisfy itself that the defendant, if he or she chooses to appear pro se, is fully aware of the risks involved and makes the choice knowingly.” Id.; see also State v. Gethers, 197 Conn. 369, 376, 497 A.2d 408 (1985); State v. Varricchio, 10 Conn. App. 265, 268, 522 A.2d 843 (1987). “Our role as a reviewing court is to determine whether at any point in the proceedings the defendant effectively waived his right to counsel.” State v. Varricchio, supra, 269.
The defendant argues that the second and third inquiries required by § 961 did not yield responses from him that satisfied the requirements for a proper waiver of counsel. With respect to § 961 (2), the defendant asserts that he was not trained in the law, had received
Our review of the record leads us to conclude that the trial court substantially complied with the provisions of § 961. The record also amply demonstrates that the court properly determined that each of the four requirements of § 961 was met, including that the defendant possessed the intelligence and capacity to appreciate the consequences of the decision to represent himself, and that he comprehended the nature of the charges and proceedings and the dangers and disadvantages associated with self-representation. Moreover, the trial court insisted that standby counsel be present during all proceedings and be prepared to assist and take over if necessary. The defendant was aware that he could avail himself of the assistance of counsel, and the record discloses that he in fact did freely discuss with, and receive assistance from, standby counsel.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Subsequently, a long form information was filed setting forth the following events: the defendant’s attempted escape from the courtroom, the defendant’s escape from prison, the defendant’s wrongful appropriation of an automobile and the defendant’s resistance of arrest. The information alleged each of these incidents to be a violation of the standard condition of probation that the defendant, while on probation, refrain from violating the criminal laws of this state.
The defendant’s first pro se motion to dismiss the violation of probation charge was denied after a hearing by Purt,ill, J., on June 17, 1994. Subsequently, Judge Purtill recused himself because he had signed the violation of probation arrest warrant. Judge Parker indicated that he would disregard Purtill’s denial and rehear the motion.
See footnote 2.
“(1) Has been clearly advised of his right to the assistance of counsel, including his right to the assignment of counsel when he is so entitled;
“(2) Possesses the intelligence and capacity to appreciate the consequences of the decision to represent himself;
“(3) Comprehends the nature of the charges and proceedings, the range of permissible punishments, and any additional facts essential to a broad understanding of the case; and
“(4) Has been made aware of the dangers and disadvantages of self-representation.”