State v. Rodriguez ( 2016 )

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STATE OF CONNECTICUT v. JOSUE RODRIGUEZ
(SC 19199)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Robinson and
Vertefeuille, Js.
Argued November 4, 2015—officially released March 15, 2016
David V. DeRosa, assigned counsel, for the appel-
lant (defendant).
Harry Weller, senior assistant state’s attorney, with
whom, on the brief, was Brian Preleski, state’s attorney,
for the appellee (state).
Opinion
McDONALD, J. When a criminal defendant has been
found to have violated the terms of his probation on
the basis of allegations that he has committed a new
crime while on probation, his appeal from the finding
of violation of probation, contending that there was
insufficient evidence for the trial court to conclude
that he committed the new crime, is rendered moot if,
subsequent to that finding, he either pleads guilty to or
is convicted at trial of having committed the new crime.
This is true because, as a matter of law, when a condi-
tion of probation is that the offender is to refrain from
violating any criminal laws, conviction of a new crime
conclusively establishes a probation violation. In State
v. T.D., 286 Conn. 353, 360, 944 A.2d 288 (2008), how-
ever, we recognized a narrow exception to this rule:
when a defendant under these circumstances takes a
timely direct appeal from his conviction on the new
criminal charge, his violation of probation cannot be
presumed, and an appellate court is not barred from
considering the merits of the probation violation appeal.
The question presented by this appeal is whether this
exception to the mootness doctrine extends to cases
in which the defendant fails to take a timely appeal
from his guilty plea to the new crime but, instead, chal-
lenges the plea collaterally in a habeas corpus proceed-
ing. We conclude that a habeas corpus petition, unlike
a direct appeal, does not keep alive a defendant’s claim
that there was insufficient evidence to find him in viola-
tion of his probation.
The relevant factual and procedural history is set
forth in the opinion of the Appellate Court. See State
v. Rodriguez, 130 Conn. App. 645, 646–49, 23 A.3d 826
(2011). ‘‘In 2005, the defendant [Josue Rodriguez] was
convicted of sale of narcotics in violation of General
Statutes § 21a-277 (a), and sentenced to twelve years
incarceration, execution suspended, with five years pro-
bation. As a condition of the defendant’s probation, he
was not to violate the criminal laws of the state. In
2007, the defendant was convicted of risk of injury to
a child in violation of General Statutes § 53-21 (a) (1)
and burglary in the third degree in violation of General
Statutes § 53a-103. He was sentenced to a total effective
term of ten years incarceration, execution suspended,
and five years probation. The defendant also was found
in violation of his probation imposed in 2005, as a result
of those offenses. His probation was not revoked, but,
rather, it was to run concurrently with the probationary
term imposed for the [2007] conviction. The conditions
of his [2007] probation included, inter alia, no contact
with the victim, Damaris Sanchez, and a ‘zero tolerance’
provision for any [future] violations.’’ Id., 646–47.
‘‘In the early morning hours on November 14, 2008,
Sanchez, the defendant’s former wife with whom he
had an ‘on and off’ relationship, was asleep in her home
when she awoke to the smell of gasoline fumes. When
she looked outside the house, she saw a shadowy
human figure walk near the front of her house. When
she saw the person’s face, she recognized the person
as the defendant. She saw the defendant light a lighter
near the hood of her car, and she yelled to him, ‘what
are you doing to my car.’ The defendant ran away.
Once outside, Sanchez noticed that the defendant had
vandalized her house and car with obscene words
and phrases.
‘‘On April 13, 2009, the court found that the defendant
violated his probation by committing criminal mischief
and violating the no contact order. The court revoked
his probation and sentenced him to serve the entire
twelve years of his original 2005 sentence.’’ Id., 647.
Later that day, the defendant ‘‘appeared before
another judge on the underlying criminal charges and
pleaded guilty, pursuant to the Alford doctrine,1 to
attempt to commit arson in the second degree in viola-
tion of General Statutes §§ 53a-112 and 53a-49. The
defendant was thereafter sentenced to eight years incar-
ceration, concurrent to the twelve year sentence
imposed for violating probation.’’ Id., 648–49.
The defendant filed a timely appeal from the judg-
ment of the trial court finding him in violation of his
2005 probation, contending, among other things, that
there was insufficient evidence for the court to find by
a preponderance of the evidence that he had violated
the terms of his probation. Id., 646. The defendant,
however, did not take a timely appeal challenging his
guilty plea to the charge of attempt to commit arson.
Instead, on July 30, 2009, three months after the period
in which to take an appeal had expired, he filed a peti-
tion for habeas corpus, claiming that the attorney who
represented him at both of the April 13, 2009 hearings
was ineffective and subject to conflicts of interest, and
seeking relief from both the arson conviction and the
finding of probation violation. Rodriguez v. Warden,
Superior Court, judicial district of Tolland, Docket No.
TSR-CV-09-4003132-S.
On appeal from the trial court’s judgment finding a
violation of probation, the Appellate Court dismissed
the defendant’s sufficiency challenge as moot. State v.
Rodriguez, supra, 130 Conn. App. 649. Relying on its
decision in State v. Milner, 130 Conn. App. 19, 21 A.3d
907 (2011), appeal dismissed, 309 Conn. 744, 72 A.3d
1068 (2013), the Appellate Court concluded that the
defendant’s plea of guilty to the arson charge conclu-
sively established that he had violated the terms of
his 2005 probation. The court also concluded that his
collateral challenge by way of the habeas corpus peti-
tion, contending that the plea was the result of ineffec-
tive counsel, did not create or revive an actual
controversy as to whether he had violated probation.
State v. Rodriguez, supra, 648–49.
We granted certification to appeal, limited to the fol-
lowing question: ‘‘Did the Appellate Court properly con-
clude that the defendant’s sufficiency of the evidence
challenge to the trial court’s finding that he had violated
his probation was rendered moot by his guilty plea to
the underlying criminal charges, despite the fact that
he is now challenging that guilty plea in a pending
habeas corpus proceeding?’’ State v. Rodriguez, 310
Conn. 907, 76 A.3d 628 (2013). After oral argument, we
also asked the parties to submit supplemental briefs
addressing the question whether, if we conclude that
the present appeal is moot, and if the defendant subse-
quently were to prevail in his habeas action resulting
in the vacating of the underlying arson conviction,
either this court or the habeas court would have the
jurisdiction and authority to reinstate his appellate
rights in this matter. Additional facts will be set forth
as appropriate.
The defendant’s principal claim is that the Appellate
Court improperly determined that his appeal, con-
tending that there was insufficient evidence to support
the trial court’s finding that he had violated the terms
of his probation, was moot because he subsequently
pleaded guilty to one of the alleged crimes underlying
that finding. Specifically, he contends that, by filing a
habeas corpus petition attacking that guilty plea during
the pendency of the violation of probation appeal, he
preserved a live controversy as to whether he did in
fact commit a crime while on probation. The state, by
contrast, contends that seeking habeas relief from the
intervening conviction, unlike a timely appeal, does not
preserve a live controversy with respect to the underly-
ing criminal conduct and, accordingly, that the Appel-
late Court properly concluded that the defendant’s
appeal was moot. We agree with the state.
The following principles and precedents are relevant
to the disposition of the defendant’s claim. ‘‘For a case
to be justiciable, it is required, among other things, that
there be an actual controversy between or among the
parties to the dispute . . . . [T]he requirement of an
actual controversy . . . is premised upon the notion
that courts are called upon to determine existing contro-
versies, and thus may not be used as a vehicle to obtain
advisory judicial opinions on points of law. . . . More-
over, [a]n actual controversy must exist not only at
the time the appeal is taken, but also throughout the
pendency of the appeal. . . . When, during the pen-
dency of an appeal, events have occurred that preclude
an appellate court from granting any practical relief
through its disposition of the merits, a case has become
moot.’’ (Citation omitted; internal quotation marks
omitted.) State v. T.D., supra, 286 Conn. 361. Mootness
presents a question of law over which we exercise ple-
nary review. Id.
In State v. McElveen, 261 Conn. 198, 203, 217, 218, 802
A.2d 74 (2002), ‘‘the defendant’s probation was revoked
after he was found to have violated it by attempting to
rob a food delivery person. . . . The defendant
appealed from the judgment revoking his probation,
claiming that the evidence was insufficient to support
the finding of a violation. . . . During the pendency of
his appeal, the defendant pleaded guilty to one count
of attempted robbery in the third degree. . . . Conse-
quently, we concluded that the appeal was moot
because there no longer existed an actual controversy
over whether the defendant had committed the criminal
conduct underlying the violation of probation. . . . We
explained [that] [t]he defendant is seeking review of the
trial court’s determination that he violated probation by
virtue of his criminal conduct . . . . By admitting to
that very conduct by virtue of his guilty plea and the
resultant judgment of conviction of attempted robbery
in the third degree . . . the defendant has eliminated
the controversy before the court.’’ (Citations omitted;
internal quotation marks omitted.) State v. T.D., supra,
286 Conn. 362. We reaffirmed the holding of McElveen
in State v. Singleton, 274 Conn. 426, 438–39, 876 A.2d
1 (2005).
Subsequently, in State v. T.D., supra, 286 Conn. 363–
65, we concluded that a judgment of conviction of the
underlying crime following a guilty verdict by a jury
will have the same effect as a guilty plea: extinguishing,
as a matter of law, any controversy as to whether the
defendant committed that crime and rendering moot
any appeal alleging that there was insufficient evidence
to support a violation of probation. In that case, how-
ever, we nevertheless concluded that the defendant’s
appeal was not moot because, unlike in McElveen and
Singleton, the defendant in T.D. took a timely appeal
from the underlying judgment of conviction. Id., 365–66.
‘‘Given the existence of essentially contemporaneous
appeals,’’ we concluded, ‘‘there remained a live contro-
versy over whether the defendant had engaged in the
criminal conduct underlying the violation of probation.’’
Id., 366. We stated the rule as follows: ‘‘When . . . [a]
defendant has pursued a timely appeal from a convic-
tion for criminal conduct and that appeal remains unre-
solved, there exists a live controversy over whether
the defendant engaged in the criminal conduct, and an
appeal challenging a finding of violation of probation
stemming from that conduct is not moot.’’ Id., 366–67.
Most recently, in State v. Milner, supra, 130 Conn.
App. 27, the Appellate Court considered whether to
extend this rule to defendants who fail to take a timely
appeal from a judgment of conviction resulting from a
guilty plea or a guilty verdict on the underlying crime,
but instead seek habeas relief from that conviction.
After considering the ‘‘cogent arguments’’ on both sides
of the issue, the Appellate Court concluded that a collat-
eral attack on the intervening criminal conviction does
not have the same effect as a direct appeal in preserving
a live controversy as to a violation of probation finding
predicated on the underlying criminal conduct. Id. That
court identified two policy reasons favoring a bright
line rule distinguishing direct appeals from collateral
challenges in this context.
First, the court noted that ‘‘[t]here is no time limita-
tion, other than considerations of custody and collateral
consequences, on the filing of a petition seeking habeas
corpus relief, and, additionally, several years can pass
between the filing of a claim for habeas corpus relief and
its disposition.’’ Id., 28. Although the Appellate Court did
not explain the import of this distinction, the concern
presumably is that whereas a direct appeal has a single,
continuous life span beginning within a circumscribed
period after conviction and ending at a well-defined
point of termination, habeas petitions—both original
and successive—may be filed at any time. This means
that, under the rule proposed by the defendant, an
appeal from a finding of violation of probation might
repeatedly be mooted and then revived, depending on
whether a defendant chose to pursue habeas relief for
the underlying criminal conviction at the time. This
would give rise to confusion and disruption; see, e.g.,
State v. Milner, 309 Conn. 744, 752 and n.9, 72 A.3d
1068 (2013); and create the potential for gamesmanship
as well.
Second, even if, as in the present case, the habeas
petition is filed relatively soon after the conviction,
the Appellate Court emphasized that there is a clear
jurisprudential distinction between direct appeals and
collateral challenges: ‘‘[T]he mootness consideration
underlying the bar [on challenging the evidentiary suffi-
ciency of a finding of probation violation predicated on
criminal conduct of which the probationer was subse-
quently convicted] is not whether practical relief can
be afforded, but, rather, whether a live controversy
exists as to whether the defendant committed the crimi-
nal conduct.’’ State v. Milner, supra, 130 Conn. App.
28. While a timely appeal preserves a live controversy,
the Appellate Court reasoned, a habeas corpus petition
at best revives a controversy after the conviction has
become final. Id., 27 and n.2. Therefore, the court con-
cluded, the rationales underlying the direct appeal
exception that we carved out in T.D. simply do not
apply in the habeas context. Id., 27–28.
For these reasons, the Appellate Court in Milner dis-
missed as moot the defendant’s claim that there was
insufficient evidence to support the finding of violation
of probation. Id., 36. We granted certification in Milner
to consider the question presented herein; State v. Mil-
ner, 302 Conn. 926, 28 A.3d 226 (2011); but we subse-
quently dismissed the appeal as moot when that
defendant failed to prosecute his habeas case. State
v. Milner, supra, 309 Conn. 747. The question is now
squarely before us.2
Having considered the parties’ arguments, we are
persuaded that Milner was correctly decided, and that
‘‘a collateral attack on the intervening criminal convic-
tion does not serve to revive the controversy such that
mootness is averted.’’ State v. Milner, supra, 130 Conn.
App. 27. In addition to the concerns regarding the final-
ity of judgments and the timeliness and continuity of
appeals on which the Appellate Court relied, we note
that the rule in Milner promotes judicial economy.
When the underlying conviction in a probation revoca-
tion hearing is the subject of a habeas petition, the most
efficient approach will be to allow the habeas petition
to proceed to resolution before expending judicial
resources on a direct appeal of a finding of violation
of probation, the merits of which may depend in large
part on the outcome of the habeas case. If the defendant
fails to prevail on his habeas petition, there will be
no grounds ever to appeal the sufficiency of evidence
supporting the probation violation. If he does prevail,
as we explain hereinafter, the habeas court may provide
an appropriate forum for raising those claims. Lastly,
we recognize that a contrary rule could have the unde-
sirable effect of promoting gamesmanship by those who
find themselves in the defendant’s position.
The defendant offers three primary arguments for
treating collateral challenges the same as direct appeals
for mootness purposes, none of which is compelling.
First, he makes the somewhat circular argument that,
by allowing a habeas petition attacking the underlying
criminal conduct to preserve a live controversy for the
purposes of a parallel probation violation proceeding,
we would reduce or eliminate the incidence of habeas
petitions claiming that, by advising a defendant to enter
a guilty plea on the intervening charges (and thus sabo-
taging his violation of probation appeal), defense coun-
sel provided ineffective legal assistance. Of course, this
court, as well as the legislature and the judges of the
Superior Court, could reduce the incidence of ineffec-
tive assistance of counsel claims by eliminating all man-
ner of rules and procedures the ignorance of which
may lead unwary counsel to offer poor advice. We think
the more prudent course, however, is to trust in the
diligence and competence of the defense bar to provide
sound professional advice under such circumstances.
The defendant’s second argument is that it is unfair
to force a defendant to choose between (1) pleading
guilty to the underlying criminal charges, and thereby
rendering moot his violation of probation appeal, or (2)
contesting the underlying criminal charges, and thus
running the risk that, if he is later convicted thereof,
he will not receive presentence jail credit for any time
spent in jail before he is sentenced. If the argument is
that a defendant who intends to contest his guilt on the
underlying charges should have the right to game the
system by pleading guilty to those charges, beginning
to accrue presentence credit, and then attacking the
voluntariness of the plea in a habeas proceeding while
he simultaneously appeals the finding of violation of
probation, the defendant has suggested no basis or
authority for such a right, and we are aware of none.
The defendant’s third argument is that, if we conclude
that a collateral attack on the plea to the underlying
criminal charge does not avert mootness of the violation
of probation appeal, then, should he prevail on the
former, he would be deprived, unfairly, of the opportu-
nity to obtain relief with respect to the latter finding.
We disagree. In his amended petition for a writ of habeas
corpus, the defendant purported to challenge the valid-
ity of his guilty plea to the arson charge. The first claim
of the petition, however, alleged that Attorney William
Gerace, who represented the defendant in his three
criminal cases relevant to this appeal and the corres-
ponding pleas in those criminal cases, was precluded
from providing representation to the defendant com-
mencing with his second criminal case, which resulted
in the 2007 risk of injury and burglary convictions, due
to a conflict of interest. Moreover, in his second habeas
claim, alleging ineffective assistance of counsel and
failure to investigate, the defendant alleged not only
that Gerace failed to effectively advise him as to the
legal consequences of his guilty plea to the arson charge
in his third criminal case, but also that, during the viola-
tion of probation hearing, ‘‘Attorney Gerace failed to
object to Judge Espinosa’s conclusion that the victim
was a battered woman in the absence of any evidence
substantiating that conclusion.’’ Consistent with these
claims, the defendant requested, by way of relief, not
only that the habeas court withdraw or vacate all of
his guilty pleas in his three criminal cases, resulting in
the narcotics, risk of injury, burglary, and arson convic-
tions, but also that the court vacate the finding of viola-
tion of probation and order a new probation revocation
hearing on the merits. In light of the expansive relief
the defendant is seeking in the habeas case, we con-
clude that, should he prevail in his attack on the arson
plea, the habeas court also may afford him appropriate
relief in the violation of probation matter.3
For these reasons, we conclude that the Appellate
Court properly determined that, by pleading guilty to
attempt to commit arson while he was on probation,
the defendant rendered moot his claim that there was
insufficient evidence for the trial court to find that he
had violated the terms of his probation. We further
conclude that by filing a subsequent habeas petition
attacking that plea the defendant did not revive the
controversy so as to render his direct appeal justiciable.
Because we affirm the Appellate Court’s determination
that the defendant’s sufficiency of evidence claim must
be dismissed as moot, we do not consider the defen-
dant’s substantive arguments as to the merits of that
claim.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed. 2d
162 (1970).
2
In the habeas case, the habeas court, Sferrazza, J., denied the present
defendant’s petition. Rodriguez v. Warden, supra, Superior Court, Docket
No. TSR-CV-09-4003132-S. That case presently is on appeal to the Appellate
Court, however, and so remains a live controversy. See Rodriguez v. Com-
missioner of Correction, Connecticut Appellate Court, Docket No. AC 35929.
On October 7, 2015, the Appellate Court stayed the habeas appeal pending
the outcome of the present case.
3
If the habeas court were to afford the defendant the full relief he seeks—
including vacating the finding of probation violation and ordering a new
hearing on the merits—then a pending direct appeal from that finding of
probation violation would be unripe. Even if the habeas court were to allow
the defendant only to withdraw his arson plea but leave the finding of
probation violation undisturbed, that court’s broad remedial powers encom-
pass the authority, under appropriate circumstances, to reinstate his appel-
late rights in a matter under its jurisdiction. See Kaddah v. Commissioner
of Correction, 299 Conn. 129, 137–38, 7 A.3d 911 (2010). We do not foreclose,
however, the possibility that, if the defendant prevails in his collateral attack
on the arson plea but the habeas court does not then afford him any meaning-
ful opportunity to obtain review of the finding of violation of probation, he
may petition this court for the reinstatement of his appellate rights.