No. (AC 26218).Appellate Court of Connecticut
Bishop, DiPentima and Foti, Js.
Syllabus
The defendant, who was on probation in connection with his conviction on two counts of the crime of risk of injury to a child in violation of statute (§ 53-21 [a] [1]), appealed to this court from the judgments of the trial court revoking his probation for his failure to complete a sex offender treatment program successfully. The defendant had been discharged from the sex offender treatment program as a result of his failure to
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admit his crimes during therapy. He claimed, inter alia, that because the statute (§ 53a-30 [a] [12]) that permits the trial court to order a defendant who has been convicted of certain enumerated offenses to undergo specialized sex offender treatment as part of his probation, does not include § 53-21 (a) (1), the court was without the authority to order sex offender treatment as a condition of his probation. Held:
1. The defendant’s claim that the trial court imposed an unauthorized condition of probation was unavailing; even though § 53a-30 (a) (12) does not list the offense for which the defendant was convicted, the sex offender treatment condition imposed by the court was generally authorized by the statute (§ 53a-30 [a] [17]) that gives the court, in its discretion, the authority to do what it deems reasonably necessary to rehabilitate the probationer and to protect prospective victims.
2. The defendant’s claim to the contrary notwithstanding, the record demonstrated that he was adequately apprised of the conditions of his probation and had notice that failure to admit to his offenses while undergoing sex offender treatment could lead to the revocation of his probation; although the statute (§ 53a-32a) governing violations of probation by certain sexual offenders, which provides a mechanism for the automatic revocation of probation for defendants on probation for convictions of certain enumerated offenses, does not specifically refer to § 53-21 (a) (1), it did not deprive the trial court of its discretion to revoke the defendant’s probation, especially under the circumstances here, where the trial court stated to the defendant when he entered his guilty plea that he was to undergo sex offender treatment as a condition of his probation and the defendant was told several times prior to entering sex offender treatment that refusing to admit to the crimes for which he was convicted would result in unsuccessful treatment, discharge from the program and the initiation of probation revocation proceedings, the trial court not having been required to notify the defendant, at the time of his plea, of all the potential conduct that could result in a discharge from the sex offender treatment program.
Argued March 27, 2006.
Officially released May 30, 2006.
Procedural History
Two informations charging the defendant with violation of probation, brought to the Superior Court in the judicial district of Tolland, geographical area number nineteen, where the cases were consolidated and tried to the court, T. Sullivan, J.; judgments revoking the defendant’s probation, from which the defendant appealed to this court. Affirmed.
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Michael Zariphes, special public defender, for the appellant (defendant).
Michele C. Lukban, senior assistant state’s attorney, with whom, on the brief, were Matthew C. Gedansky, state’s attorney, and Elizabeth G Learning, assistant state’s attorney, for the appellee (state).
Opinion
BISHOP, J.
The defendant, Roy D, appeals from the judgments of the trial court revoking his probation pursuant to General Statutes § 53a-32. On appeal, the defendant claims that (1) the court imposed an unauthorized condition of probation and (2) he did not have notice that failure to admit to his offenses while undergoing sex offender treatment could lead to the revocation of his probation. We affirm the judgments of the trial court.
The following facts are relevant to our consideration of the defendant’s appeal. On October 11, 2001, the defendant pleaded guilty under the Alford doctrine[2] to two counts of risk of injury to a child in violation of General Statutes § 53-21 (a) (1). The defendant was sentenced, pursuant to the plea agreement, to ten years imprisonment, execution suspended after three years, followed by five years of probation with terms and conditions to be set forth by the court. As one of the special conditions of probation, the defendant was ordered to “be evaluated for and, if recommended by the evaluator and probation, enrolled in and to successfully complete a sex offender treatment program.” The
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court also ordered that “adult probation is authorized to impose any additional conditions of probation deemed necessary for the protection of the public and the rehabilitation of the offender.”
The defendant was released from prison on March 7, 2003, and probation supervision commenced on that date. Prior to his release from prison, a probation officer explained to the defendant, and the defendant signed a copy of, the conditions of his probation, which included the condition of sex offender treatment. Subsequent to his release, the defendant met with another probation officer, who again explained the conditions of his probation, and the defendant signed a copy of the same conditions.
On May 6, 2003, the agency that was under contract with the office of adult probation to provide the defendant’s therapy indicated that he would be required to admit his misconduct in order to complete sex offender treatment successfully. The defendant was advised by the program leader that failure to admit his crimes during therapy would result in unsatisfactory sex offender treatment, discharge from the program and the initiation of probation violation proceedings. The defendant signed a treatment contract acknowledging that violating any of the conditions of the contract would result in unsuccessful treatment and discharge from the program. The defendant also signed a copy of his treatment goals and discharge criteria, which stated that his first treatment goal was “admitting to your offense.” He was advised that at the end of six months, his continued denial would result in his discharge from the program and probation revocation proceedings. The defendant was also told by his probation officer that his probation would be violated if he failed to complete the treatment program successfully. The defendant was offered the opportunity to take a polygraph test relating to the basis of his denial and was
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told that if he passed the polygraph test, he would be discharged from the program with no malice, meaning that he would not be deemed unsuccessful and, therefore, would not be in violation of his probation. The defendant declined that offer.[3]
In January, 2004, the defendant was discharged from the sex offender treatment program for unsuccessful treatment as a result of his continued denial of his crimes. On February 5, 2004, the defendant’s probation officer applied for an arrest warrant seeking to revoke the defendant’s probation as a result of his failure to complete a sex offender treatment program successfully. The court found that the defendant had failed to comply with this condition of his probation, revoked his probation and sentenced him to serve five years of the original sentence.[4] This appeal followed.
I
The defendant first claims that because General Statutes § 53a-30 (a) (12)[5] does not include § 53-21 (a) (1) as an enumerated offense for which express authority is given to the court to impose specialized sex offender
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treatment as a condition of probation, the court was without authority to do so.[6] We disagree.
State v. Cyr, 57 Conn. App. 743, 751 A.2d 420, cert. denied, 254 Conn. 905, 755 A.2d 883 (2000), is directly on point with the issue before us. Like the defendant in this case, the defendant in Cyr was convicted of risk of injury to a child in violation of subdivision (1) of the applicable statute, General Statutes (Rev. to 1997) § 53-21 (1) i Cyr, § 53-21 (a) (1) in the present case. In Cyr, this court held that even though General Statutes (Rev. to 1997) § 53a-30 (a) (11), now (12), does not list the offense for which the defendant was convicted, General Statutes (Rev. to 1997) § 53a-30 (a) (12), now (17), [7] “gives the court, in its discretion, the authority to do what it deems reasonably necessary to rehabilitate the probationer and to protect prospective victims of such probationers.” State v. Cyr, supra, 748. The court held that the sex offender treatment condition imposed by the sentencing court in Cyr was authorized pursuant to § 53a-30 (a) (12), now (17), regardless of the fact that the crimes for which the defendant was convicted did not fall within the purview of § 53a-30 (a) (11), now (12). Id. Because the present case is indistinguishable from Cyr, [8] the defendant’s claim must fail.
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II
The defendant next claims that the court was required to notify him, when he entered his guilty plea under the Alford doctrine, that a failure to acknowledge that he committed the acts with which he was charged would result in a violation of his probation. We are not persuaded.
At the outset, we review the pertinent law governing guilty pleas. “It is axiomatic that unless a plea of guilty is made knowingly and voluntarily, it has been obtained in violation of due process and is therefore voidable. . . . A plea of guilty is, in effect, a conviction, the equivalent of a guilty verdict by a jury. . . . In choosing to plead guilty, the defendant is waiving several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. . . . The . . . constitutional essentials for the acceptance of a plea of guilty are included in our rules and are reflected in Practice Book §§ [39-19 and 39-20]. . . . The failure to inform a defendant as to all possible indirect and collateral consequences does not render a plea unintelligent or involuntary in a constitutional sense.” (Internal quotation marks omitted.) State v Greene, 274 Conn. 134, 143-44, 874 A.2d 750 (2005).
“There is no requirement . . . that the defendant be advised of every possible consequence of such a plea. . . . Although a defendant must be aware of the direct consequences of a plea, the scope of direct consequences is very narrow. . . . In Connecticut, the direct consequences of a defendant’s plea include only the mandatory minimum and maximum possible sentences; Practice Book § [39-19 (2) and (4)]; the maximum possible consecutive sentence; Practice Book § [39-19 (4)]; the possibility of additional punishment imposed because of previous conviction(s); Practice Book § [39-19
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(4)]; and the fact that the particular offense does not permit a sentence to be suspended. Practice Book § [39-19 (3)]. . . .” (Internal quotation marks omitted.) State v. Greene, supra, 274 Conn. 145.
“Although [p]robation is the product of statute . . . modifications of probation routinely are left to the office of adult probation. When the court imposes probation, a defendant thereby accepts the possibility that the terms of probation may be modified or enlarged in the future pursuant to § 53a-30. . . . Finally, the due process clause of the fourteenth
amendment to the United States constitution requires that certain minimum procedural safeguards be observed in the process of revoking the conditional liberty created by probation. Black v. Romano, All U.S. 606, 610, 105 S. Ct. 2254, 85 L. Ed. 2d 636 (1985). . . . Where noncriminal activity forms the basis for the revocation of probation . . . due process mandates that the [probationer] cannot be subject[ed] to a forfeiture of his liberty for those acts unless he is given prior fair warning.” (Citations omitted; internal quotation marks omitted.) State
v. Faraday, 268 Conn. 174, 202-203, 842 A.2d 567 (2004).
With those principles in mind, we conclude, as our Supreme Court did i Faraday, that the trial court was not required to notify the defendant, when he entered his plea, that a failure to acknowledge guilt could result in a violation of the condition of his probation requiring sex offender treatment. See id., 203. As in Faraday, the defendant here does not dispute that the trial court stated to him, when he entered his plea, that he was to undergo sex offender treatment as a condition of his probation. The Supreme Court stated: “At that point, it was not incumbent upon the trial court also to list all the potential conduct that could result in a discharge from that program. Furthermore, because the office of adult probation is free to modify the terms of the defendant’s probation at any time . . . it is unrealistic
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to expect the court to canvass a defendant regarding the conduct necessary to comply with those terms.” (Citation omitted.) Id.
The defendant claims that General Statutes § 53a-32a, [9] which explicitly provides that a discharge from sex offender treatment for a failure to acknowledge guilt will automatically trigger a probation revocation proceeding, does not specifically refer to § 53-21 (a) (1), the statute under which he was convicted. The defendant contends that, in light of this omission, he reasonably believed that a discharge from sex offender treatment for a failure to acknowledge guilt would not result in probation revocation proceedings. Although § 53a-32a triggers an automatic violation of a probation imposed for certain underlying offenses, there is no indication in the statute, and the defendant does not provide any support for the proposition, that the statute’s enumeration of automatic violations is intended to prevent the court from exercising its authority to revoke probation when revocation is not mandated. In other words, although § 53a-32a provides a mechanism for the automatic revocation of probation in cases in which the underlying crimes are specifically enumerated, it does not deprive courts of the discretion to revoke probation under other circumstances.[10]
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In this case, the defendant was informed by the court, at the time that he was sentenced, that he would be required, as part of his probation, to complete recommended sex offender treatment and to abide by any additional conditions deemed necessary by the office of adult probation. The defendant had notice of the court’s ability to impose conditions of probation consistent with his rehabilitation and the safety of the community, and the authority of the office of adult probation to modify or to enlarge the conditions at any time. Additionally, the record reveals that the defendant was told several times, including prior to entering the sex offender treatment program, that refusing to admit to the crimes for which he was convicted would result in an unsatisfactory discharge from the program and the initiation of probation revocation proceedings. As in Faraday, although the defendant was free to maintain the innocence associated with his plea in order to maintain the conditional liberty created by probation, he was required to comply with its conditions. See State v. Faraday, supra, 268 Conn. 206. We therefore conclude that the defendant was adequately apprised of the conditions of his probation and the consequences of his continued denial of guilt with respect to the crimes for which he was convicted.
The judgments are affirmed.
In this opinion the other judges concurred.
doctrine is a judicial oxymoron in that the defendant does not admit guilt but acknowledges that the state’s evidence against him is so strong that he is prepared to accept the entry of a guilty plea nevertheless.” (Internal quotation marks omitted.) State v. Wheatland, 93 Conn. App. 232, 234 n. 1, 888 A.2d 1098, cert. denied, 277 Conn. 919, 895 A.2d 793 (2006).
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