State v. Jones , 173 Conn. App. 218 ( 2017 )

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STATE OF CONNECTICUT v. LAQUAN JONES
(AC 36557)
Keller, Prescott and West, Js.
Argued November 29, 2016—officially released May 16, 2017
(Appeal from Superior Court, judicial district of
Hartford, Alexander, J.)
Matthew C. Eagan, assigned counsel, with whom
were Michael S. Taylor, assigned counsel, and, on the
brief, James P. Sexton, assigned counsel, for the appel-
lant (defendant).
Rita M. Shair, senior assistant state’s attorney, with
whom were Gail P. Hardy, state’s attorney, and, on the
brief, Robin Krawczyk, senior assistant state’s attorney,
for the appellee (state).
Opinion
WEST, J. The defendant, Laquan Jones, appeals from
the judgment of the trial court finding that he violated
his probation by carrying a pistol without a permit dur-
ing his probationary period. On appeal, the defendant
claims that the court improperly revoked his probation
because there was insufficient evidence to establish a
violation during his probationary period. We conclude
that this claim is moot because the defendant subse-
quently pleaded guilty to the conduct that served as
the basis for the violation of probation, and, thus, we
dismiss the appeal.
The record reflects the following facts and procedural
history. On December 20, 2011, the defendant pleaded
guilty to assault in the first degree for discharging a
firearm in violation of General Statutes § 53a-59 (a) (5).
The defendant was sentenced to ten years incarcera-
tion, execution suspended, and five years probation.
The conditions of the defendant’s probation required
that he, inter alia, (1) not violate any criminal law of
the United States, this state, or any other state or terri-
tory, (2) not be in possession of any weapons, and
(3) have no new arrests. The defendant’s probationary
period commenced on December 20, 2011.
Thereafter, the defendant was arrested for an inci-
dent that occurred on March 10, 2013. Lorenzo Chris-
tian, the victim, was shot in the leg, and witnesses
identified the defendant as the shooter. The defendant
was charged with violation of probation, pursuant to
General Statutes § 53a-32. The trial court, Alexander,
J., presided over the three day trial on the violation of
probation charge. The adjudicatory phase was tried on
September 9 and September 11, 2013, and the disposi-
tional phase was tried on September 16, 2013. The court
found that the state had met its burden of showing that
the defendant had violated a condition of his probation
by committing the felony of carrying a pistol without
a permit in violation of General Statutes § 29-35. The
court revoked the defendant’s probation, and imposed
a ten year period of incarceration, which had previously
been suspended when he was convicted of assault in
2011.
On October 29, 2013, the defendant entered a guilty
plea, pursuant to the Alford doctrine,1 to carrying a
pistol without a permit in violation of § 29-35 (a). The
court allowed the entry of an Alford plea because the
defendant contested the facts underlying the violation
of probation finding.2 The defendant was ultimately sen-
tenced, on the firearm charge, to four years incarcera-
tion, one year of which was mandatory, to run
concurrent with his previous sentence of ten years.
On February 19, 2014, the defendant filed this appeal,
from the violation of probation ruling, to challenge the
sufficiency of the evidence that formed the basis for
that finding. He did not file, however, a timely appeal
to challenge the voluntariness of his subsequent Alford
plea to the firearm charge on the basis that he would
not have entered the plea if he had understood that it
would cause his appeal from the probation matter to
become moot.3 The defendant subsequently filed a
motion for permission to file a late appeal with this
court on November 7, 2016. In the motion, the defendant
claimed, as the basis for good cause to file a late appeal,
that his current counsel had been unaware that he had
previously pleaded guilty, pursuant to the Alford doc-
trine, to the firearm charge. On November 10, 2016, we
denied the defendant’s motion to file a late appeal to
challenge his Alford plea to the firearm charge. Addi-
tional facts will be set forth as necessary.
Although neither party briefed the issue of whether
this appeal is moot in light of the defendant’s Alford
plea, the question involves this court’s subject matter
jurisdiction and was addressed by both parties during
oral argument to this court. See Haynes v. Middletown,
306 Conn. 471, 474, 50 A.3d 880 (2012). Thus, we must
consider at the outset whether we have subject matter
jurisdiction to decide the defendant’s challenge to the
finding that he violated his probation. The defendant
raised the issue of subject matter jurisdiction over the
present appeal in his motion to file a late appeal to
challenge the validity of his Alford plea. At oral argu-
ment, the defendant claimed that, despite his Alford
plea to the charge that constituted the factual basis for
the violation of his probation, this court has subject
matter jurisdiction over his challenge to the trial court’s
finding that he violated his probation because he had
filed a motion to file a late appeal, thus preserving a live
controversy. Additionally, he argued that the present
appeal is not moot because the court, during the crimi-
nal proceeding, had attempted to preserve the defen-
dant’s right to appeal by allowing him to enter an Alford
plea, and that the court and the defendant’s attorney
had failed to recognize that entering the Alford plea
would preclude him from challenging on appeal the
violation of probation finding. In particular, he argues
that the trial court, during the criminal proceeding for
the same incident that formed the basis for the violation
of probation finding, ‘‘indicated to the defendant its
belief that entering an Alford plea would not impact
his appellate rights in the violation of probation matter.’’
During oral argument to this court, the state, in turn,
alleged that even if the defendant entered the Alford
plea unknowingly and involuntarily,4 this court lacks
subject matter jurisdiction over this appeal because,
pursuant to State v. T.D., 286 Conn. 353, 360, 944 A.2d
288 (2008), and its progeny State v. Rodriguez, 320
Conn. 694, 695, 132 A.3d 731 (2016), no live controversy
existed once the defendant pleaded guilty to the firearm
charge under the Alford doctrine. Once he entered the
Alford plea, he effectively admitted to the criminal con-
duct underlying the violation of probation. Additionally,
the state argued that any failure of the defendant’s trial
counsel to understand that the entry of the Alford plea
would cause this appeal to become moot is more appro-
priately the subject of a petition for a writ of habeas
corpus. We agree with the state that the appeal is moot.
‘‘Mootness implicates a court’s subject matter juris-
diction and, therefore, presents a [claim] over which
we exercise plenary review.’’ State v. T.D., supra, 286
Conn. 361. To be justiciable, a case must contain ‘‘an
actual controversy between or among the parties to the
dispute . . . . [T]he requirement of an actual contro-
versy . . . is premised upon the notion that courts are
called upon to determine existing controversies, and
thus may not be used as a vehicle to obtain advisory
judicial opinions on points of law. . . . Moreover, [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 pendency of an
appeal, events have occurred that preclude an appellate
court from granting any practical relief through its dis-
position of the merits, a case has become moot.’’ (Cita-
tions omitted; footnote omitted; internal quotation
marks omitted.) In re Allison G., 276 Conn. 146, 165,
883 A.2d 1226 (2005).
Our Supreme Court’s decision in State v. T.D., supra,
286 Conn. 353, is dispositive of the defendant’s claim.
In that case, the court opined that ‘‘it is the fact of a
conviction itself, regardless of the route by which it
has been obtained, that eliminates any controversy over
whether a violation of probation has occurred. As this
court repeatedly has indicated, a conviction based on
a guilty plea is the functional equivalent of a conviction
following a guilty verdict by a jury.’’ Id., 364. The court
in T.D. concluded that ‘‘[i]f a defendant has been con-
victed of criminal conduct, following either a guilty
plea, Alford plea or a jury trial, and the defendant does
not challenge that conviction by timely appealing it,
then the conviction conclusively establishes that the
defendant engaged in that criminal conduct. An appeal
challenging a finding of violation of probation based
on that conduct is, therefore, moot.’’ Id., 366; see also
State v. McElveen, 261 Conn. 198, 218, 802 A.2d 74 (2002)
(‘‘[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 . . . the defendant has elimi-
nated the controversy before the court.’’).
A recent decision of our Supreme Court confirms and
further illustrates the mootness of the current appeal:
‘‘When a criminal defendant has been found to have
violated the terms of his probation on the basis of allega-
tions that he has committed a new crime while on
probation, his appeal from the finding of violation of
probation, contending that there was insufficient evi-
dence 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 condition of proba-
tion is that the offender is to refrain from violating any
criminal laws, conviction of a new crime conclusively
establishes a probation violation.’’ State v. Rodriguez,
supra, 320 Conn. 695. The court in Rodriguez acknowl-
edged that T.D. carved out a narrow exception to this
rule, in that it held that ‘‘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’’ because a live controversy remains.
Id.; see State v. T.D., supra, 286 Conn. 360.
The defendant here claimed, during oral argument,
that this appeal is not moot because the trial court
allegedly assured him that, by entering the Alford plea
to the underlying criminal conduct that formed the basis
for the violation of probation finding, he would not be
precluded from bringing a subsequent appeal to chal-
lenge the violation of probation finding. We hold that
this claim is both factually and legally incorrect, and,
thus, we dismiss the appeal.
We conclude, upon a review of the record, that the
defendant’s claim is factually incorrect because the
court never promised the defendant that, by entering
an Alford plea, he would not be precluded from appeal-
ing the violation of probation finding. At the October
29, 2013 plea hearing, the defendant’s attorney stated
that ‘‘[m]y only concern is . . . I’m thinking I might
need a nolo plea. I don’t know what effect this is going
to have on his potential [probation] appeal and if nolo
would preserve that or not.’’ Although the defendant’s
attorney expressed concern about filing a subsequent
appeal to challenge the probation violation finding, he
did not specify that he was concerned, in particular,
with a mootness issue in regard to filing an appeal on
that ground. The court, in response to the concern of
the defendant’s attorney, stated that it would ‘‘note [the
plea] as an Alford plea because clearly [the defendant]
was contesting the underlying facts which formed the
violation of probation. So, again, it’s not being used as
an admission against [the defendant]. It’s being used
so that he can take advantage of a plea agreement.’’
From this colloquy, we conclude that the court never
expressly assured the defendant that, by entering an
Alford plea, that plea would not create a mootness issue
in a subsequent appeal to challenge the violation of
probation finding. It is not, as the defendant argues,
clear that the court was attempting to preserve his right
to appeal the violation of probation finding. Rather, the
transcript reflects an attempt, by the court, to ensure
that the plea reflected the defendant’s disagreement
with the underlying facts that constituted the basis for
the violation of probation finding. Thus, the defendant’s
claim that the court provided an assurance that this
appeal would not become moot is not supported by
the record.
The defendant’s claim that this appeal is not moot
because of the trial court’s assurances is also legally
incorrect. To the extent that the defendant argues that
this appeal is not moot because the court allegedly
guaranteed him that entering an Alford plea would pre-
serve for appeal his challenge to the violation of proba-
tion finding, he is incorrect because the court cannot
promise a result that is counter to existing case law.
Potvin v. Lincoln Service & Equipment Co., 298 Conn.
620, 650, 6 A.3d 60 (2010) (‘‘[a] trial court may not
overturn or disregard binding precedent’’). Under T.D.,
the fact of a conviction itself, regardless of the route by
which it has been obtained, eliminates any controversy
over whether a violation of probation has occurred.
State v. T.D., supra, 286 Conn. 366. An Alford plea is a
guilty plea, resulting in a conviction. Thus, in the present
matter, the defendant was precluded, under T.D. and
Rodriguez, from challenging the violation of probation
finding once he had entered an Alford plea to an offense
constituting the same conduct that served as the basis
for that finding, because the conviction of that crime
conclusively established a probation violation. More-
over, the defendant cannot demonstrate that the facts
of this case fall within the narrow exception articulated
in T.D., which would allow us to consider the merits
of his insufficiency of the evidence challenge, because
he failed to timely file a direct appeal to challenge the
validity of his Alford plea and his motion to file a late
appeal was denied. State v. T.D., supra, 366–67. As the
defendant conceded at oral argument, we are bound
by precedent and, therefore, conclude that this appeal is
moot because his conviction, stemming from the same
conduct that served as the basis for the violation of
probation, conclusively established that the defendant
engaged in that criminal conduct. Thus, there is no live
controversy left for us to resolve.
The appeal is dismissed.
In this opinion the other judges concurred.
1
See North Carolina v. Alford, 400 U.S. 25, 37, 91 S. Ct. 160, 27 L. Ed.
2d 162 (1970).
2
The following portion of the transcript from the defendant’s plea hearing
is relevant to this appeal:
‘‘[Defense Counsel]: My only concern is, Your Honor, I’m thinking I might
need a nolo plea. I don’t know what effect this is going to have on his
potential appeal and if nolo would preserve that or not.
‘‘The Court: Do you want to call it an Alford plea? So he disagrees with
the facts—
‘‘[Defense Counsel]: Yes.
‘‘The Court: —and—but he wants to take the plea agreement rather than
the risk of a trial on this matter. So we’ll note it as an Alford plea because
clearly he was contesting the underlying facts which formed the violation
of probation. So, again, it’s not being used as an admission against him. It’s
being used so that he can take advantage of a plea agreement.’’
3
The defendant states, in his motion for permission to file a late appeal
from the firearm conviction, that he was ‘‘unaware of the potential jurisdic-
tional defect his guilty plea created in his appeal of the violation of pro-
bation.’’
4
See State v. Crenshaw, 210 Conn. 304, 309, 554 A.2d 1074 (1989) (‘‘every
valid guilty plea must be demonstrably voluntary, knowing and intelligent’’
[internal quotation marks omitted]).