State v. Suzanne P. ( 2021 )

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STATE OF CONNECTICUT v. SUZANNE P.*
(AC 43859)
Suarez, Clark and DiPentima, Js.
Syllabus
Convicted on a plea of guilty of the crime of operating a motor vehicle while
under the influence of intoxicating liquor or drugs as a second offender,
the defendant appealed to this court following the trial court’s denial
of her motion to modify a condition of her probation. As part of the
plea agreement, the state entered a nolle prosequi as to each of two
unrelated charges against the defendant, for breach of the peace in the
second degree and criminal trespass in the first degree. The breach of
the peace charge arose from an incident between the defendant and
her boyfriend, L, and the criminal trespass charge arose from an incident
in which the defendant trespassed on the property of her former hus-
band, R, and their two children. As part of the defendant’s sentence,
the court imposed a special condition of probation, in which it ordered
that the defendant have no contact with the ‘‘domestic violence com-
plainants.’’ After the commencement of her probationary period, the
defendant filed a motion, requesting that the no contact condition be
modified to delete the phrase ‘‘domestic violence complainants’’ and to
replace it with language that specifically referenced only L and R. After
a hearing, the trial court denied the motion and the defendant appealed
to this court. Held:
1. The trial court’s determination that the special condition prohibited the
defendant from having any contact with her children was not improper:
although the trial court’s oral pronouncement that the defendant have
no contact with the ‘‘domestic violence complainants’’ was ambiguous,
its clarification that the phrase was meant to include the defendant’s
children was not manifestly unreasonable, because, even though crimi-
nal trespass is not a domestic violence crime, it was clear that the court
intended the phrase ‘‘domestic violence complainants’’ to include those
affected by the defendant’s criminal trespass in addition to the victim
of the breach of the peace, L, and, although the children were not direct
complainants in the criminal trespass charge, the terms ‘‘complainant’’
and ‘‘victim’’ may be used interchangeably in criminal proceedings, the
defendant did not challenge the fact that R, who was also the victim of
criminal trespass, was included in the no contact order, and, if the trial
court had intended the order to apply only to L, it would have used the
singular term ‘‘complainant’’ instead of the plural term ‘‘complainants’’;
moreover, the issue of no contact with the children was before the
court at the defendant’s sentencing hearing, as, during that hearing, R
specifically requested that the defendant be prohibited from contacting
him and the children and defense counsel argued that, if a no contact
order were to be imposed, it should not apply to the children.
2. The trial court did not abuse its discretion in denying the defendant’s
motion for modification:
a. The defendant could not prevail on her unpreserved claim that her
right to procedural due process was violated because she was not pro-
vided with notice and an opportunity to be heard with respect to the
no contact condition, the defendant having failed to establish a violation
of a constitutional right under State v. Golding (213 Conn. 233): the trial
court was not required to canvass the defendant regarding the special
condition of probation under the applicable rule of practice (§ 39-19)
because the condition was not a direct consequence of the plea; more-
over, at the sentencing hearing, R specifically and repeatedly requested
that the defendant have no contact with him and the children and the
defendant was provided with a meaningful opportunity to address the
issue; furthermore, the defendant did not move to withdraw her plea
even though she was aware, prior to the imposition of the sentence, that
a special condition of probation prohibiting contact with the children
was before the trial court.
b. The defendant’s constitutional right to substantive due process was
not violated because the special condition of probation did not violate
her fundamental right to parent her children, as the condition did not
reach further than was necessary to protect the children’s safety: the
no contact condition furthered a valid objective of probation because it
sought to protect the safety of the children as members of the public;
moreover, under the circumstances of this case, the trial court’s taking
into consideration the emotional and mental health safety of the defen-
dant’s children when fashioning its special conditions of probation was
an appropriate extension of State v. Ortiz (83 Conn. App. 142), in which
a no contact order was imposed to protect the physical safety of the
defendant’s children, as there was ample indication in the record of
emotional harm, and the no contact order focused on the emotional
well-being of the children.
Argued May 19—officially released November 9, 2021
Procedural History
Information charging the defendant with the crime
of operating a motor vehicle while under the influence
of intoxicating liquor or drugs and with the infraction of
failure to display lights while operating a motor vehicle,
brought to the Superior Court in the judicial district of
Hartford, geographical area number fourteen, where
the defendant was presented to the court, Baio, J., on
a plea of guilty to operating a motor vehicle while under
the influence of intoxicating liquor or drugs as a second
offender; judgment of guilty in accordance with the
plea; thereafter, the state entered a nolle prosequi as
to the infraction of failure to display lights; subse-
quently, the court, Baio, J., denied the defendant’s
motion to modify a special condition of her probation,
and the defendant appealed to this court. Affirmed.
Daniel J. Krisch, assigned counsel, for the appellant
(defendant).
Kevin M. Black, Jr., former certified legal intern, with
whom were Michele C. Lukban, senior assistant state’s
attorney, and, on the brief, Sharmese A. Walcott, state’s
attorney, and Mark Brodsky, former senior assistant
state’s attorney, for the appellee (state).
Opinion
DiPENTIMA, J. The defendant, Suzanne P., appeals
from the judgment of the trial court denying her
amended motion to modify a special condition of her
probation. On appeal, the defendant claims that the
court improperly (1) determined that the special condi-
tion prohibited her from having any contact with her
children, and (2) denied her amended motion for modifi-
cation despite the fact that the special condition prohib-
iting contact with her children violates her right to due
process. We affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant. On July 6, 2018, the defendant pleaded guilty to
operation of a motor vehicle while under the influence
of intoxicating liquor or drugs in violation of General
Statutes § 14-227a as a second offender. As part of the
plea agreement, the defendant also admitted to having
violated the terms of her probation. Her pleas were part
of a global resolution in which the following charges
were nolled: breach of the peace in the second degree
in violation of General Statutes § 53a-181, criminal tres-
pass in the first degree in violation of General Statutes
§ 53a-107 and failure to display lights while operating
a motor vehicle in violation of General Statutes § 14-
96a (a). The breach of the peace charge arose from an
incident involving the defendant and her boyfriend, L.
The criminal trespass charge involved an incident in
which the defendant, after having been warned not to
trespass at the residence of her former husband, R,
and their two children, left on the front porch of that
residence a gift bag containing photographs and a note
indicating that she would like to see their children.
After canvassing the defendant, the court found that
the plea was made knowingly and voluntarily and
accepted the plea. The state recommended two years
of incarceration, execution suspended after one year,
with three years of probation. The state urged the court
to order as a special condition of probation that the
defendant have no contact with L. The court ordered
a presentence investigation report (PSI), continued the
matter for sentencing and noted that the defendant had
the right to argue for a lesser sentence.
At the August 31, 2018 sentencing hearing, the issue
of no contact with the defendant’s children was raised.
When invited to provide a victim statement to the court,
R stated, ‘‘[W]ith a long history of [the defendant’s]
insobriety, my children and I would just like a no con-
tact.’’1 The defendant noted her struggles with sobriety
and expressed her desire not to force herself on her
children. She explained, ‘‘Clearly alcohol has destroyed
and taken away a lot of good things in my life. . . . I
am a chronic relapser . . . . I just can’t lose anymore.
The worst of all of it is the time with my children.’’
The court noted the defendant’s history of unsuccessful
attempts at sobriety and the loss of contact with her
children. The court sentenced the defendant to two
years of incarceration, execution suspended after one
year, and three years of probation. One of the special
conditions of probation ordered by the court was that
the defendant have ‘‘no contact with the domestic vio-
lence complainants.’’2 The court further stated that,
after the defendant had completed four months of pro-
bation, she may file a motion to modify and ‘‘show that
there has been justification to address the issue of no
contact . . . .’’3
Before the defendant began probation, she filed a
motion to modify the no contact condition as to L, with
whom she planned to reside following her release. At
a January 18, 2019 hearing, the court denied the motion
and clarified that the no contact order prohibited con-
tact with L and the defendant’s family.
The defendant’s probationary period began on May
13, 2019. The relevant written special condition of her
probation provided that she have ‘‘[n]o contact with
victim(s)/complainant(s) [L], [R] or [the] victim’s/com-
plainant’s family.’’ The defendant filed a motion, dated
July 29, 2019, for clarification and modification of the
no contact special condition, in which she requested
the court to clarify that the no contact condition of her
probation did not apply to her children. In the motion,
the defendant argued that R had prevented her from
having visitation with her children as a result of the no
contact special condition, despite the fact that, pursuant
to a divorce settlement, the defendant and R shared
joint legal custody of the children, aged thirteen and
sixteen, who reside with R. The court denied the motion
without prejudice because R, who had made it ‘‘abun-
dantly clear that he did not want contact for himself
or his children,’’ was not provided notice of the hearing.
The defendant then filed an ‘‘amended motion to modify
condition of probation,’’ dated November 13, 2019, in
which she sought to ‘‘modify the ‘no contact’ condition
of [her] probation by specifically deleting the condition
of ‘no contact with the domestic violence complainants’
and substitute [it] with ‘no contact with [L] and the
defendant’s ex-husband [R], with the exception that
[she] be permitted to have communication with [R] for
the specific purposes of discussing the educational,
financial, and health related needs of her minor chil-
dren.’ ’’ (Emphasis in original.) In her motion, the defen-
dant contended that prohibiting her from contacting
her children while on probation conflicted with the
court’s oral pronouncement of her sentence and vio-
lated her constitutional right to due process.
At the November 15, 2019 hearing on the defendant’s
amended motion to modify, defense counsel stated that
the defendant is ‘‘minimally . . . seeking clarification
. . . .’’ Counsel representing R and his children stated
that they did not want contact with the defendant at
this time and elaborated that the children ‘‘have suffered
deep wounds because of their mother’s behavior and
. . . they are going through recovery just as their
mother is going through recovery . . . .’’ R requested
that the court ‘‘uphold the no contact for myself and
my children at this time.’’ The court stated that, because
the therapist of the older child ‘‘is here, essentially, in
a representative role for those children, I will allow a
brief comment . . . .’’ The therapist stated that the
child was seeking stability and is not interested in hav-
ing visitation with the defendant and that it was not in
the best interest of the child to force her to have contact
with the defendant. The court stated that ‘‘there’s a
family court matter going on. Clearly there are going
to be issues happening over there. . . . If the parties
come back and say that there’s no opposition to modifi-
cation, the court will hear the motion.’’ The court con-
cluded that the no contact special condition pertained
to the children and noted that, ‘‘[i]f we were here today
with the domestic violence victim and/or counsel on
their behalf saying that there was no opposition and
that they wanted contact, the court’s order would be
very different.’’ At the conclusion of the hearing, the
court denied the motion. This appeal followed.
On November 19, 2020, the court issued an articula-
tion of its denial of the defendant’s amended motion
to modify in response to a motion for articulation filed
by the defendant.4 Additional facts will be set forth as
necessary.
I
The defendant first claims that the court improperly
determined that the special condition prohibited her
from having any contact with her children. She argues
that the court’s oral pronouncement, made at the time of
sentencing, that she have ‘‘no contact with the domestic
violence complainants,’’ is unambiguous and conflicts
with the written memorialization of that special condi-
tion, which provides that the defendant have ‘‘[n]o con-
tact with victim(s)/complainant(s) [L], [R] or [the] vic-
tim’s/complainant’s family.’’ We are not persuaded that
the court’s determination was improper.
We note, preliminarily, that the court’s oral pro-
nouncement of the special condition controls and not
the written memorialization of the oral pronouncement.
‘‘[B]ecause the sentence in a criminal case generally is
imposed orally in open court . . . the written order or
judgment memorializing that sentence, including any
portion pertaining to probation, must conform to the
court’s oral pronouncement.’’ (Citation omitted.) State
v. Denya, 294 Conn. 516, 529, 986 A.2d 260 (2010). ‘‘Con-
sequently, as a general matter, any discrepancy between
the oral pronouncement of sentence and the written
order or judgment will be resolved in favor of the court’s
oral pronouncement.’’ Id., 531.
Whether the defendant’s criminal trespass is an act
of family violence under General Statutes § 46b-38a is
not the issue presented to us in this appeal. The court
apparently considered the trespass to be a domestic
violence crime, but the issue in this appeal is whether
the court used the term ‘‘domestic violence complain-
ants’’ to include the children.5 The court’s use of the
plural term ‘‘complainants’’ indicates that it intended
to include more persons than L in the order. It, however,
is ambiguous as to whether the term ‘‘complainants’’
includes, in addition to L, only R or R and the children.
In light of this ambiguity, we next consider whether the
court properly determined that the no contact condition
applied to the defendant’s children.
‘‘In order to determine whether the trial court prop-
erly clarified ambiguity in the judgment or impermissi-
bly modified or altered the substantive terms of the
judgment, we must first construe the trial court’s judg-
ment. It is well established that the construction of a
judgment presents a question of law over which we
exercise plenary review. . . . In construing a trial
court’s judgment, [t]he determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . The interpretation of a judgment may
involve the circumstances surrounding the making of
the judgment. . . . Effect must be given to that which
is clearly implied as well as to that which is expressed.
. . . The judgment should admit of a consistent con-
struction as a whole. . . . In addition . . . because
the trial judge who issues the order that is the subject
of subsequent clarification is familiar with the entire
record and, of course, with the order itself, that judge
is in the best position to clarify any ambiguity in the
order. For that reason, substantial deference is
accorded to a court’s interpretation of its own order.
. . . Accordingly, we will not disturb a trial court’s
clarification of an ambiguity in its own order unless
the court’s interpretation of that order is manifestly
unreasonable.’’ (Citations omitted; internal quotation
marks omitted.) Bauer v. Bauer, 308 Conn. 124, 131–32,
60 A.3d 950 (2013).
‘‘[T]he purpose of a clarification is to take a prior
statement, decision or order and make it easier to
understand. Motions for clarification, therefore, may be
appropriate where there is an ambiguous term in a
judgment or decision . . . but, not where the movant’s
request would cause a substantive change in the
existing decision.’’ (Internal quotation marks omitted.)
Light v. Grimes, 136 Conn. App. 161, 169, 43 A.3d 808,
cert. denied, 305 Conn. 926, 47 A.3d 885 (2012).
At the November 15, 2019 hearing on the defendant’s
amended motion to modify, the court clarified that ‘‘the
transcript was clear, that the hearing was clear, and
that the sentence was clear that the no contact [condi-
tion] with the domestic violence victims and conditions
imposed included no contact with the children.’’ In its
articulation of the denial of the defendant’s amended
motion to modify, the court stated: ‘‘At the time of
sentencing, the defendant’s ex-husband, [R], expressed
. . . that he and his children wanted no contact with
the defendant . . . and not[ed] that they can no longer
handle the defendant’s ongoing alcohol abuse. The
defendant herself acknowledged her issues and that
she would not force herself on her children. The court
considered the effect on those closest to the defendant
of her history of alcohol abuse and noncompliance with
court orders.’’
The defendant disagrees with the court’s clarification
that the defendant’s children are included within the
phrase ‘‘domestic violence complainants.’’ She argues
that R was the sole complainant in the criminal trespass
case and, furthermore, that criminal trespass is not a
domestic violence crime. In criminal proceedings,
‘‘complainant’’ is often used in place of ‘‘victim.’’ See,
e.g., State v. Warholic, 278 Conn. 354, 369–70 and n.7,
897 A.2d 569 (2006). The interchangeable use of these
terms does not render the court’s clarification mani-
festly unreasonable simply because the children did not
directly complain of the criminal trespass but did so
indirectly through R. We are also not persuaded by the
defendant’s argument that the children are not included
as ‘‘domestic violence complainants’’ because criminal
trespass is not a domestic violence crime. If so, then
R would be eliminated from the no contact order, and
the defendant does not challenge on appeal that the
special condition applied to R. It is clear that the court
intended the phrase ‘‘domestic violence complainants’’
to include those affected by the criminal trespass in
addition to the victim/complainant of the breach of the
peace, L. Finally, had the court intended the phrase to
apply to L only, then it would have used the singular
rather than the plural form of ‘‘complainants.’’6
Moreover, the issue of no contact with the children
was before the court at the sentencing hearing.
Although the state’s recommendation at the sentencing
hearing that the defendant have no contact with the
‘‘domestic violence victims’’ was unclear, the state, after
making that recommendation, directed the court’s
attention to R, who had requested to be heard. R, who
was a direct victim of the criminal trespass charge,
stated that ‘‘my family and I are done with her not being
sober,’’ and requested ‘‘no contact with myself and my
children and no drive-bys by my house and my street.
. . . [M]y children and I are done looking behind our
shoulder.’’ Although the driving while intoxicated
charge to which the defendant pleaded guilty did not
involve the children, the criminal trespass charge,
which involved the children, was part of the global plea
agreement. Further demonstrating that the issue was
before the court at the sentencing hearing, defense
counsel argued that the no contact order should not
apply to the children.
In light of the issues raised at the sentencing hearing,
we conclude that the court’s November 15, 2019 clarifi-
cation that the phrase ‘‘domestic violence complain-
ants’’ includes the defendant’s children is not manifestly
unreasonable.7 See Bauer v. Bauer, supra, 308 Conn.
131–32 (‘‘ ‘we will not disturb a trial court’s clarification
of an ambiguity . . . unless the court’s interpretation
. . . is manifestly unreasonable’ ’’). Accordingly, we
defer to the court’s clarification of the no contact spe-
cial condition of the defendant’s probation.
II
The defendant next claims that the court improperly
denied her amended motion to modify because the spe-
cial condition prohibiting contact with her children vio-
lates her rights to (1) procedural due process and (2)
substantive due process. We address each claim in turn.
We first set forth the following general principles.
‘‘Probation is the product of statute. . . . Statutes
authorizing probation, while setting parameters for
doing so, have been very often construed to give the
court broad discretion in imposing conditions. . . .
[General Statutes §] 53a-30 (c) authorizes a court to
modify the terms of probation for good cause. . . . It
is well settled that the denial of a motion to modify
probation will be upheld so long as the trial court did
not abuse its discretion. . . . On appeal, a defendant
bears a heavy burden because every reasonable pre-
sumption should be given in favor of the correctness
of the court’s ruling. . . . The mere fact that the denial
of a motion to modify probation leaves a defendant
facing . . . strict conditions is not an abuse of discre-
tion. Rather, [r]eversal is required only where an abuse
of discretion is manifest or where injustice appears to
have been done.’’ (Citations omitted; internal quotation
marks omitted.) State v. Baldwin, 183 Conn. App. 167,
174–75, 191 A.3d 1096, cert. denied, 330 Conn. 922, 194
A.3d 288 (2018). Section 53a-30 (c) provides in relevant
part that, ‘‘[a]t any time during the period of probation
or conditional discharge, after hearing and for good
cause shown, the court may modify or enlarge the con-
ditions, whether originally imposed by the court under
this section or otherwise . . . .’’
A
The defendant argues that she ‘‘did not have notice
that the [special no contact] condition would bar her
from contacting her children for three years.’’ She con-
tends that the court failed to canvass her as to the
no contact special condition of her probation prior to
accepting her guilty plea.8 The defendant did not raise
these specific arguments in her amended motion to
modify or at argument on that motion and seeks review
to prevail pursuant to State v. Golding, 213 Conn. 233,
567 A.2d 823 (1989), as modified by In re Yasiel R., 317
Conn. 773, 120 A.3d 1188 (2015). Under Golding, ‘‘a
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial; and (4) if
subject to harmless error analysis, the state has failed to
demonstrate harmlessness of the alleged constitutional
violation beyond a reasonable doubt.’’ (Emphasis in
original; footnote omitted.) State v. Golding, supra, 239–
40, as modified by In re Yasiel R., supra, 781. The record
is adequate for review and the claim, which alleges a
violation of a fundamental right, namely, the right to
family integrity, is of constitutional magnitude. See
State v. Ortiz, 83 Conn. App. 142, 162–63, 848 A.2d
1246, cert. denied, 270 Conn. 915, 853 A.2d 530 (2004).
Accordingly, we review the claim under the third prong
of Golding to determine whether the alleged constitu-
tional violation exists.9
There is no requirement that a trial court canvass a
defendant regarding the consequences of her plea that
are not direct consequences, which include the items
listed in Practice Book § 39-19.10 See State v. Faraday,
268 Conn. 174, 201–202, 842 A.2d 567 (2004) (Practice
Book § 39-19 defines scope of constitutional mandate
that defendant be advised of all direct consequences
of plea). The no contact special condition of probation,
which is not listed in § 39-19, is not a direct consequence
of the plea. In the unusual circumstances of the present
case, however, another set of procedural safeguards is
implicated. ‘‘[A] parent has a fundamental liberty inter-
est in the companionship, care, custody, and manage-
ment of his or her children . . . . Therefore, a parent
may not be deprived of his or her fundamental liberty
interest without being afforded procedural due process.
See generally Mathews v. Eldridge, 424 U.S. 319, 333–34,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).’’ (Citation omitted;
internal quotation marks omitted.) Garvey v. Valencis,
177 Conn. App. 578, 593 n.5, 173 A.3d 51 (2017). ‘‘[F]or
more than a century the central meaning of procedural
due process has been clear: Parties whose rights are
to be affected are entitled to be heard; and in order
that they may enjoy that right they must first be notified.
. . . It is equally fundamental that the right to notice
and an opportunity to be heard must be granted at a
meaningful time and in a meaningful manner.’’ (Internal
quotation marks omitted.) Merkel v. Hill, 189 Conn.
App. 779, 786, 207 A.3d 1115 (2019). ‘‘The due process
clause demands that an individual be afforded adequate
notice and a reasonable opportunity to be heard when
the government deprives her of a protected liberty inter-
est. . . . [D]ue process is flexible and calls for such
procedural protections as the particular situation
demands.’’ (Citation omitted; footnote omitted; internal
quotation marks omitted.) Garvey v. Valencis, supra,
593.
The transcript of the sentencing hearing indicates
that the defendant had notice that the issue of no con-
tact with her children was before the court and had
an opportunity to be heard. To provide context to the
court’s oral ruling, we note that, at the plea hearing,
the court had informed the defendant that ‘‘we’ll delay
the sentencing subject to coming back here to see what
the PSI demonstrates and hear[ing] arguments on sen-
tencing.’’ One such argument at the sentencing hearing
was made by R, a victim of the criminal trespass charge.
Practice Book § 43-10 (2) provides that ‘‘[t]he judicial
authority shall allow the victim and any other person
directly harmed by the commission of the crime a rea-
sonable opportunity to make, orally or in writing, a
statement with regard to the sentence to be imposed.’’
In his statement regarding the sentence to be imposed,
R specifically and repeatedly requested that the defen-
dant have no contact with him and the children.
After R made these requests at the sentencing hear-
ing, the defendant was provided with a meaningful
opportunity to address the issue. The defendant
addressed the issue of contact with her children and
stated that she realizes that her daughter ‘‘is very upset
about this and I’m not going to push myself on them
. . . .’’ Defense counsel was provided the opportunity
to discuss the no contact condition prior to sentencing.
He stated that the defendant wants to ‘‘live a healthy
lifestyle . . . free from drinking where she can serve
as a proper parent to her children,’’ and ‘‘resume . . .
healthy relationships with her family . . . .’’ He specifi-
cally requested that ‘‘the court impose a no contact
order except as to the children through a third, mutually
agreed party for obvious reasons that relate to my cli-
ent’s sincere desire that as soon as she is alcohol free,
she has some chance of resuming a proper relationship
with her children.’’
Accordingly, the defendant was aware prior to the
imposition of the sentence that the possibility of a spe-
cial condition of probation prohibiting contact with her
children was before the court, and defense counsel had
a meaningful opportunity to argue that the no contact
special condition should not include the defendant’s
children. Despite this opportunity, the defendant did
not move to withdraw her plea or otherwise challenge
the validity of her plea. For the foregoing reasons, we
conclude that the defendant’s right to notice and an
opportunity to be heard was not violated. As a result,
the defendant’s claim fails under the third prong of
Golding because the defendant failed to establish a
violation of a constitutional right.
B
The defendant next argues that her right to substan-
tive due process was violated when the court denied
her amended motion to modify because the no contact
special condition prohibiting her ‘‘from contacting her
children for three years violates her ‘fundamental lib-
erty interest’ as a parent.’’11 We are not persuaded.
‘‘The standard of review for the denial of a motion
to modify probation is well established. . . . Section
53a-30 (c) authorizes a court to modify the terms of
probation for good cause. . . . It is well settled that the
denial of a motion to modify probation will be upheld
so long as the trial court did not abuse its discretion.
. . . On appeal, a defendant bears a heavy burden
because every reasonable presumption should be given
in favor of the correctness of the court’s ruling. . . .
The mere fact that the denial of a motion to modify
probation leaves a defendant facing a lengthy probation-
ary period with strict conditions is not an abuse of
discretion. Rather, [r]eversal is required only where
an abuse of discretion is manifest or where injustice
appears to have been done.’’ (Internal quotation marks
omitted.) State v. Njoku, 202 Conn. App. 491, 496–97,
246 A.3d 33 (2021). ‘‘In view of the nature and goals of
probation, however, and because any number of proba-
tionary conditions or combinations thereof are likely
to be suitable in any particular case, the trial court has
an exceptional degree of flexibility in determining [the]
terms [of probation] . . . and we therefore review
those terms for abuse of discretion only.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Imperiale, 337 Conn. 694, 707, 255 A.3d 825 (2021).
‘‘When sentencing a defendant to probation, a trial
court has broad discretion to impose conditions. . . .
Nevertheless, this discretion is not unlimited, as statu-
tory and constitutional constraints must be observed.’’
(Citations omitted; footnote omitted.) State v. Graham,
33 Conn. App. 432, 447, 636 A.2d 852, cert. denied,
229 Conn. 906, 640 A.2d 117 (1994). ‘‘[I]n determining
whether a condition of probation impinges unduly [on] a
constitutional right [in any particular case], a reviewing
court should evaluate the condition to ensure that it is
reasonably related to the purposes of [probation]. . . .
Consideration of three factors is required to determine
whether [such] a reasonable relationship exists: (1) the
purposes sought to be served by [the] probation[ary]
[condition]; (2) the extent to which constitutional rights
enjoyed by law-abiding citizens should be accorded to
probationers; and (3) the legitimate needs of law
enforcement.’’ (Citation omitted; internal quotation
marks omitted.) State v. Imperiale, supra, 337 Conn.
708; see also State v. Smith, 207 Conn. 152, 167–73, 540
A.2d 679 (1988) (court did not abuse its discretion in
modifying terms of probation under § 53a-30 to include
urinalysis testing, which defendant claimed was unrea-
sonable search and seizure in violation of his fourth
and fourteenth amendment rights under federal consti-
tution).
One valid objective of probation is ‘‘ ‘to preserve the
public’s safety.’ ’’ State v. Ortiz, supra, 83 Conn. App.
164. We conclude that the no contact condition of the
defendant’s probation furthers that objective because
it protects her children as members of the public. See
id., 166 (protecting defendant’s children as members of
public serves goal of probation). In the present case,
the court stated in its articulation that ‘‘the condition
of no contact was warranted and proper based on the
danger the defendant posed to those close to her as a
consequence of her criminal history, multiple convic-
tions for operating under the influence, her long-stand-
ing substance abuse and history of noncompliance with
conditions of probation, including those related to sub-
stance abuse treatment.’’
Although no evidentiary hearing was conducted
regarding the effect of the defendant’s attempt to con-
tact the children by leaving a gift and note on R’s front
porch after having been warned not to trespass, there
were detailed comments from R regarding the effect
that the defendant’s history of insobriety and prior
unwanted attempts at contact had on the children.
‘‘[D]ue process does not require that information con-
sidered by the trial judge prior to sentencing meet the
same high procedural standard as evidence introduced
at trial. Rather, judges may consider a wide variety of
information. . . . [T]he trial court may consider
responsible unsworn or out-of-court information rela-
tive to the circumstances of the crime and to the con-
victed person’s life and circumstance. . . . It is a fun-
damental sentencing principle that a sentencing judge
may appropriately conduct an inquiry broad in scope,
and largely unlimited either as to the kind of information
he may consider or the source from which it may come.’’
(Internal quotation marks omitted.) State v. Ortiz,
supra, 83 Conn. App. 165.
The defendant claims that the condition unconstitu-
tionally infringes on her right to parent her children.
The condition of probation restricts parental rights and,
thus, interferes with the exercise of a fundamental con-
stitutional right. Therefore, we apply an additional layer
of scrutiny to this restriction. ‘‘[C]hoices about mar-
riage, family life, and the upbringing of children are
among associational rights [the United States Supreme
Court] has ranked as of basic importance in our society
. . . rights sheltered by the [f]ourteenth [a]mendment
against the [s]tate’s unwarranted usurpation, disregard,
or disrespect. . . . A prohibition on contact with one’s
children affects the defendant’s associational rights.’’
(Citation omitted; internal quotation marks omitted.)
Id., 165–66. Even when a court is warranted in severely
restricting the defendant’s contact with her children in
furtherance of the goal of probation to protect them as
members of the public, ‘‘that restriction should not
reach further than is reasonably necessary for the pres-
ervation of the children’s safety.’’ Id., 166.
In Ortiz, the defendant was convicted, inter alia, of
kidnapping and assaulting the victim, with whom the
defendant had three children. Id., 144–45. At the sen-
tencing hearing, the prosecutor told the court that the
victim had provided detailed accounts of the defen-
dant’s abuse of the children, including an incident in
which he put a sock and tape over the mouth of his
one year old child to stop the baby from crying and
another occasion on which he allegedly shook another
baby, which resulted in brain damage. Id., 164–65. The
defendant received a total effective sentence of thirty
years of incarceration, execution suspended after
twenty years, and five years of probation with one of
the conditions of probation being that he have no con-
tact with his three children until they reach eighteen
years of age. Id., 144, 161. The defendant claimed on
appeal that the condition of no contact with his children
was illegal. Id., 161. This court concluded that, ‘‘[i]n
light of the information the court had before it at sen-
tencing, the court was warranted in its concern of not
just protecting the victim, but also her offspring. How-
ever, the defendant also attacks the breadth of the
order, which proscribes all contact with his children.
. . . A strict application of the court’s order appears
to prohibit the defendant from sending even a birthday
card to his children. Yet, it is difficult to imagine how
such mail contact could jeopardize their safety. We
conclude that a blanket prohibition of all such contact
with the children is violative of the defendant’s constitu-
tional rights.’’ (Citation omitted; emphasis in original.)
Id., 165–66. Accordingly, this court reversed the order
only insofar as the no contact provision prohibited mail
contact. Id., 166.
In the present case, the defendant argues that there
was no indication that her misconduct had harmed her
children. She contends that her children were not in
the car with her when she was driving under the influ-
ence and that the criminal trespass charge simply
involves her having left a gift bag on R’s porch. The
charges and the harm stemmed from the defendant’s
actions in leaving a note for the children on R’s porch,
after having been warned not to trespass. Ortiz requires
that a condition prohibiting contact with a defendant’s
children be reasonably necessary for the preservation
of the children’s ‘‘safety’’ but does not indicate whether
that is restricted only to physical safety. Id.
We are persuaded that the trial court’s taking into
consideration the emotional and mental health safety
of the children when fashioning its special conditions
of probation is, under the circumstances of the present
case, an appropriate extension of Ortiz. In the present
case, it is undisputed that the defendant’s criminal con-
duct, which victimized her children, arose out of and
was intertwined with her alcohol abuse. It was reason-
able for the court, in imposing its special conditions of
probation, to take measures to protect the children from
the defendant’s intoxicated behavior. Moreover, it was
reasonable for the court to infer that intoxicated behav-
ior could cause emotional injury to the children even
if did not occur in the children’s presence. The notion
that the defendant be able to resume contact with her
children once she is capable of having a healthy relation-
ship with her family was raised by the defendant herself
as well as by her counsel at the sentencing hearing.
The defendant, appearing to recognize the harm caused
to her children, stated that she was ‘‘sick of disappoint-
ing everybody including myself,’’ and that she did not
want to ‘‘push’’ herself on her children or ‘‘bombard’’
them. Her counsel, also appearing to recognize the role
that alcohol abuse had played in damaging the emo-
tional bond between the defendant and her children,
stated that it is ‘‘my client’s sincere desire that as soon
as she is alcohol free, she has some chance of resuming
a proper relationship with her children.’’ The court
crafted a special condition of probation that took into
account the defendant’s desire not to ‘‘bombard’’ the
children and to have the chance to resume a healthy
relationship with her children.
Moreover, there is ample indication in the record of
emotional harm. At the sentencing hearing, R stated
that he and the children are ‘‘done’’ with the defendant
‘‘not being sober . . . .’’ At the hearing on the defen-
dant’s amended motion to modify, counsel for R and
the children stated that the children had suffered ‘‘deep
wounds’’ and are ‘‘going through recovery . . . .’’ R
further explained at that hearing that the last visit the
children had with the defendant was in December, 2014,
that the children did not want contact with the defen-
dant and that they ‘‘feel [as] though . . . they can’t
really go to places such as the mall or to the center
with their friends because they don’t want to be looking
behind their shoulder.’’ In its articulation, the court
noted that R had expressed both directly and through
a letter that the children ‘‘can no longer handle the
defendant’s ongoing alcohol abuse.’’ The therapist of
the older child stated that ‘‘this is an ongoing issue
. . . [the child] is at this point not interested in having
visitation.’’ These circumstances are significantly distin-
guishable from the circumstances of Ortiz. In Ortiz, the
condition prohibiting all contact with the defendant’s
children until they reach the age of eighteen violated his
constitutional rights because there was no information
before the court that mail contact would jeopardize the
safety of the children. State v. Ortiz, supra, 83 Conn.
App. 166. In the present case, based on the information
before the court, the no contact order reasonably
focused on the emotional well-being of the children.
Because the special condition does not reach further
than reasonably necessary to protect the children’s
safety; see id., 163–66; the defendant’s constitutional
right to parent was not violated. Accordingly, we con-
clude that the court did not abuse its discretion in
denying the motion for modification.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with our policy of protecting the privacy interests of the
victims of domestic violence, we decline to identify the defendant, the
victims, or others through whom the victims’ identity may be ascertained.
See General Statutes § 54-86e.
1
L requested that the protective order be removed, which request the
state opposed.
2
Special conditions of probation are conditions aside from the standard
conditions of probation that apply to all probationers. See, e.g., State v.
Johnson, 75 Conn. App. 643, 646 n.3, 817 A.2d 708 (2003).
3
Although the court expressly stated at the sentencing proceeding that
the defendant could move to modify the special condition upon a showing
of a justification for doing so, the defendant’s amended motion to modify
alleged no such justification.
4
The defendant filed a motion for articulation on July 17, 2020, seeking
an articulation from the trial court of its reasons for denying her amended
motion to modify. Following the court’s denial of the motion for articulation,
the defendant filed in this court a motion for review of the denial of her
motion for articulation. This court granted the defendant’s motion for review
but denied the relief requested therein and further ordered, sua sponte, that
the court ‘‘articulate whether it considered the defendant’s claim, raised in
her November 13, 2019 ‘amended motion to modify condition of probation’
that the no contact order with her children resulted in the termination of
her parental rights for three years without due process, in violation of both
the Connecticut and United States constitutions, and, if so, to state the factual
and legal basis for its decision concerning this claim.’’ In its articulation,
the court explained the basis for its imposition of a no contact order as to
the children, which included the defendant’s multiple violations of protective
orders, failure to comply with probation requirements and the protection
of those closest to the defendant.
5
At the August 21, 2019 hearing on the defendant’s July 29, 2019 motion
for clarification and modification, the court stated that the fact that the
criminal trespass charge involving R was part of a global agreement in which
that charge was nolled ‘‘doesn’t diminish [R’s] right to be considered as a
domestic violence victim.’’
6
Moreover, at the August 21, 2019 hearing on the defendant’s July 29,
2019 motion for clarification and modification, the court referred to R as a
domestic violence victim and stated that ‘‘it was expressly noted on the
record and the state’s attorney noted the docket number in which [R] was
a domestic violence victim,’’ which was the docket number for the criminal
trespass charge.
7
We reject the defendant’s alternative argument that ‘‘the court’s refusal
to modify the written conditions of probation to conform to its actual
sentence is plain error.’’ The defendant cannot prevail under this doctrine
unless she ‘‘demonstrates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would result in manifest
injustice.’’ (Emphasis omitted; internal quotation marks omitted.) State v.
Jackson, 178 Conn. App. 16, 20, 173 A.3d 974 (2017), cert. denied, 327 Conn.
998, 176 A.3d 557 (2018). Because we conclude that the court’s clarification
was not manifestly unreasonable, the defendant has not demonstrated any
error, much less plain error.
8
The defendant also argues that she ‘‘lacked fair warning that the state
could revoke her probation for noncriminal activity.’’ See, e.g., State v.
Boseman, 87 Conn. App. 9, 17, 863 A.2d 704 (2004) (‘‘Where noncriminal
activity forms the basis for the revocation of probation, due process requires
specific knowledge that the behavior involved is proscribed. [W]here the
proscribed acts are not criminal, 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.’’ (Internal quotation marks omitted.)), cert.
denied, 272 Conn. 923, 867 A.2d 838 (2005). Because the defendant’s proba-
tion has not been revoked, the requirement of fair warning of the conditions
of probation prior to a revocation of probation has no application here.
9
There has been no challenge on appeal to the trial court’s jurisdiction
to entertain the procedural due process claim raised by the defendant. We,
however, note that ‘‘once a defendant’s sentence is executed, the trial court
lacks jurisdiction to entertain any claims regarding the validity of that plea
in the absence of a statute or rule of practice to the contrary.’’ (Internal
quotation marks omitted.) State v. Monge, 165 Conn. App. 36, 42, 138 A.3d
450, cert. denied, 321 Conn. 924, 138 A.3d 284 (2016). Section 53a-30 (c),
which grants a trial court postsentencing jurisdiction to modify or enlarge
conditions of probation for ‘‘good cause,’’ is one such exception. We further
note that the trial court, which has broad discretion in administering proba-
tion, would have jurisdiction to consider the defendant’s unpreserved due
process claim, and, therefore, we consider the claim. See State v. Obas, 320
Conn. 426, 431, 440–48, 130 A.3d 252 (2016) (reviewing state’s claim that
defendant was precluded from seeking exemption from sex offender regis-
tration, which he had raised in motion to modify probation, because he had
entered into plea agreement with state); State v. Crouch, 105 Conn. App.
693, 694, 939 A.2d 632 (2008) (reviewing claim that trial court improperly
added condition of probation in violation of terms of plea agreement and
in violation of defendant’s constitutional right to due process); State v.
Thorp, 57 Conn. App. 112, 114, 747 A.2d 537 (reviewing claim that trial
court improperly imposed more restrictive conditions of probation without
permitting defendant to withdraw guilty plea when it granted state’s § 53a-
30 (c) motion to modify), cert. denied, 253 Conn. 913, 754 A.2d 162 (2000).
10
Practice Book § 39-19 provides: ‘‘The judicial authority shall not accept
the plea without first addressing the defendant personally and determining
that he or she fully understands: (1) The nature of the charge to which the
plea is offered; (2) The mandatory minimum sentence, if any; (3) The fact
that the statute for the particular offense does not permit the sentence to
be suspended; (4) The maximum possible sentence on the charge, including,
if there are several charges, the maximum sentence possible from consecu-
tive sentences and including, when applicable, the fact that a different or
additional punishment may be authorized by reason of a previous conviction;
and (5) The fact that he or she has the right to plead not guilty or to persist
in that plea if it has already been made, and the fact that he or she has the
right to be tried by a jury or a judge and that at that trial the defendant has
the right to the assistance of counsel, the right to confront and cross-examine
witnesses against him or her, and the right not to be compelled to incriminate
himself or herself.’’
11
This substantive due process claim concerns the ongoing conditions of
supervision of the defendant while she is on probation. The trial court
has jurisdiction to entertain such a claim in the context of a motion for
modification pursuant to § 53a-30 (c), which encompasses the ongoing super-
vision of the probationer. See State v. Smith, 207 Conn. 152, 170, 540 A.2d
679 (1988).